2 Doug. 332 | Mich. | 1846
delivered the opinion of the Court.
The third section of “ An act to amend ‘ an act entitled an act relative to the city of Detroit,’ ” approved June 29, 1832, (S. L. 1832, p. 40,) confers upon the common council of the city, “ full power and authority to make all such by laws and ordinances, as may by the said common council, be deemed expedient, for effectually preventing and suppressing all disorderly houses, and houses of ill fame, within the limits of said city.”
Under this grant of power, the common council, on the 16th September, 1836, adopted an ordinance entitled “an ordinance to suppress disorderly houses and houses of ill fame.”
The first section of this ordinance provides, that “ any
The second section provides that, “ when any such house or building, so occupied, shall be deemed by the common council to be a common nuisance, it shall be competent for said common council to abate such nuisance by ordering such house or other building to be pulled down and removed, at the expense of the owner, proprietor or occupant thereof, at the discretion of such common council.”
In the case of Slaughter v. The People,
; But it is said that, irrespective of this provision of the ordinance, the defendants are justified, upon the ground that the house in question was a common nuisance, and that the corporation of the city, or the defendants as individuals, might abate it. The law undoubtedly author- f izes the corporation of Detroit, or any person residing j within its limits, to abate any nuisance that may exist, j This right is one of the few exceptions to the general rule: that no man shall take the law into his own hands ; the. exception finds its vindication in the law of necessity.®. It is a right, however, to be exercised with caution. Care must be taken that nothing is done but what is absolutely necessary to abate the nuisance. Let us apply the rule \ contended for by the defendants, to the present case. It is said that the house was a nuisance. This may be very true ; but it was a nuisance in consequence of its being j the resort of persons of ill fame. That which constitutes 1 or causes the nuisance may be removed : thus, if a house is used for the purpose of a trade or business, by which the health of the public is endangered, the nuisance may be abated, by removing whatsoever may be necessary to prevent the exercise of such trade or business : so a house : in which gaming is carried on, to the injury of the public morals; the individual by whom it is occupied may be punished by indictment, and the implements of gaming , removed; and a house in which indecent and obscene pic- i tures are exhibited is a nuisance, which may be abated / by the removal of the pictures. Thousands of young men are lured to our public theatres, in consequence of their being the resort, nightly, of the.profligate and aban-; doned ; this is a nuisance. Yet in this, and in the other
In the argument of the case, the counsel for defendants relied, with much confidence, on the case of Meeker v. Van Rensaeller, 16 Wend. 397, as supporting the principle contended for by them, that the city authorities had a right to direct the building to be pulled down. I have examined that case with much care, and find the views I have expressed in this opinion strongly confirmed. The facts in the case were, that a building, originally erected as a tan house was divided into several apartments, and while the Asiatic cholera prevailed in Albany in 1832 these apartments were inhabited by a large number of
Ordered certified accordingly.
Following is a report of the case here cited, which was decided at the January Term, 1842, of the Supreme Court — Present: Wm. A. Fletcher, C. J,, and Morkll, Whipple and Ransom, Justices.
James Slaughter v. The People.
Keeping a house of ill fame, is a criminal offence within the meaning of Article I, $ 11, of the constitution of the state, which declares that u no person shaiJ be held to. answer fora criminal offence, unless on presentment of a grand jury; except,” &c.
Held, accordingly, that an ordinance of the common council of Detroit, prescribing the punishment for keeping a house of ill fame within the limits of the city, and providing for the trial and conviction of offenders by the mayor’s court, where the proceedings are by complaint, without presentment of a grand jury, was unconstitutional; and that a summary conviction, by the mayor’s court, for a violation of this ordinance, was void.
Certiorari to the Mayor’s Court of the city of Detroit. Summary proceedings by complaint, without indictment, having been instituted against James Slaughter, in the mayor’s court, for keeping a house of ill fame, within the limits of the city, in violation of an ordinance of the common council of the city, he was tried and convicted by that court, and sentenced to pay a fine of one hundred dollars. Tb’ reverso this judgment, Slaughter sued out this writ of certiorari.
C. Tryon nnd Geo. 0. Bates, for the plaintiff in error.
B. E. Harbaugh, City Attorney, and A. B. Fraser, for the People.
Whipple, J., delivered the opinion of the Court, It is insisted, as a ground for reversing the judgment of the mayor’s court, that the offence of keeping a house of ill fame, is, both by common law and the statute of this state, a criminal offend;
With respect to the first branch of the proposition, there can be no doubt. “All disorderly inns or alehouses, bawdy houses, &c, are public nuisances, and may, therefore, be indicted.” 1 Russ, on Crimes, 297. Again: “ Every person who shall keep a house of ill fame, resorted to for the purpose of prostitution or lewdness, shall be punished by imprisonment in the county jail not more than one year, or by fine not exceeding three hundred dollars.” R. S. 1838, p. 617. Whether, therefore, we consult the common law, or the statute of this state, it is clear that keeping a bawdy house, or house of ill fame, is an offence, punishable by fine or imprisonment in the discretion of the court.
The determination of the second branch of the. proposition must depend upon the construction of Article I, section 11, of the constitution of this state, which provides that, 11 No person shall be held to answer for a criminal offence, unless on the pro sentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the army or militia when in actual service, in time of war or public danger.” What, then, is a “ criminal offence,” within the true intent and meaning of the constitution? To determine this question, we must necessarily define the term, “criminal wffenco.” “A crime or misdemeanor,” says Blackstone, “is an act committed, or omitted, in violation of a public law, either forbidding or commanding it.” 4 Bl. Com. 5. It will be perceived that this definition is applicable both to crimes and misdemeanors, which, says the same eminent author, “properly speaking, are mere synonymous terms; though, in common usage, the word ‘ crimes' is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults and omissions of less conseqence, are comprised under the gentler name of ‘misdemeanors’ only.” We must, then, consider the term “ criminal offence,” in its strict legal and technical sense, as including both crimes and misdemeanors, unless it is manifest that the framers of the constitution intended to limit or restrain the meaning of that term, as it was then and is now under
I shall now briefly slate some of the most prominent and obvious reasons by which my mind has been led to this result. And first: It is a fair presumption that the framers of our constitution, in adopting legal terms, had reference to their strict legal and technical import. To suppose otherwise, would argue adpgree of carelessness in. the use of language, which would be inexcusable in an ordinary legislative body, but especially so in a body engaged in framing a permanent constitution and form of government. Secondly: It is quite probable that the Convention, in adopting the provision in question, consulted the corresponding provision in the constitution of the United States, which is eminently distinguished, not merely for the principles it embodies, but for the precision and clearness with which those principles are stated. To my mind the difference in the phraseology was intentional, and not merely accidental. Thirdly: Not only does our constitution differ from the constitution of the United States, in this respect, but very essentially from the constitutions of almost every state in the Union. Fourthly: In the most modern of the constitutions of the states of the Union, there isa manifest inclination, not merely to enlarge, but to guard with great strictness
The next question’ to be determined is, whether in this case, the provision of the constitution referred to, has been violated. The return to the writ of certiorari shows that the incipient proceeding before the mayors’ court was a complaint, charging the plaintiff in error with the commission of an offence against the ordinances of the City; that upon the complaint the defendant below was tried, found guilty, and sentenced to pay a fine of fifty cents. If the views I have expressed be correct, it follows that this proceeding in the mayors’ court, against the plaintiff in error, was void, as being against that provision of the constitution, which declares, that “ No person shall be held to answer for any criminal offence, unless on the presentment or indictment of a grand jury.” I have not been unmindful of the views taken of the present case by the counsel for the city upon the argument, or of the numerous points made in the brief with which I have been furnished to sustain the proceedings below. If I have not noticed them particularly, the reason will be found in the fact, that I have deemed them as inapplicable to the real question presented for the consideration of this court. Before, however, dismissing this part of the case, I desire, very briefly to comment upon one point made by the counsel in argument, and relied upon in his brief. It is said that, the legislature, by an act passed June 9,1832, invested the common council of the city with full power to make by-laws and ordinances, “for effectually preventing and suppressing all disorderly houses and houses of ill fame, within the limits of said city.” (S. L. 1832, p. 40 § 3.) That in pursuance of the power thus
It was asserted with some emphasis by the counsel for the city, that the.determination of this case, by the court, would determine in effect the powers of the common council, and the mayors’ court, in respect to its police regulations. I disclaim the expression of any opinion respecting any Jaw or ordinance except those whose validity is necessarily involved in the case at bar; and I shall at all times be ready to sustain the proceedings both of the common council, and the mayors court, when they act within the scope of the authority conferred upon them. That the former should be invested with all necessary and usual powers to carry into effect the object for which the corporation was created, and that tribunals should be erected to enforce those powers by a summary proceeding, is very readily granted. The legislature have performed their duty by a grant of power sufficiently broad to authorize the enforcement of the most rigid police; it is for the local authorities to see that the grant thus liberally made jfc not abused.
Judgment reversed.