13 Or. 538 | Or. | 1886
The appellant, a Chinawoman, was arrested by a police-officer of the city of Astoria, upon a complaint by which she was accused of keeping, setting up, and assisting to keep, willfully and unlawfully, a bawdy-house, in violation of an ordinance of the city. Her attorney filed in her behalf a demurrer to the complaint, upon the grounds that it did not state facts sufficient to constitute a crime against the city of Astoria; that the Police Court thereof had no jurisdiction of the crime charged, or of the person of the defendant; that the ordinance was unconstitutional and void, and was in conflict with the general laws of Oregon. The Police Court, before whom the prosecution was had, overruled the demurrer, whereupon the appellant demanded a jury trial, but refusing to deposit the jury fee, as provided in the charter of the city, it was denied her, and she was put upon her trial, convicted, and sentenced to pay a fine of fifty dollars and costs of prosecution, or in default thereof be imprisoned in the city jail for twenty days. Refusing to pay the fine, she was committed to the jail. After an ineffectual attempt to obtain a release from the imprisonment upon habeas corpus, she petitioned the
The questions presented for the consideration of this court are, the overruling of the demurrer by the Police Court, and the refusal to allow a jury trial. The appellant’s counsel urged several points upon the appeal, which I will proceed to notice in their order. The first one is that the complaint did not show in the words of the ordinance that the appellant “knowingly” did the act complained of. This point, I think, was fully answered by the respondent’s counsel, that the words “ willfully and unlawfully ” conveyed the same meaning. To willfully do an act implies that it was done by design — done for a set purpose; and I think that it would necessarily follow that it was “ knowingly ” done. The second point was, that the court had no jurisdiction of the crime-charged. The city of Astoria, under its charter, has-power to pass ordinances to “suppress and prohibit bawdy-houses,” and a general power to punish for a violation of its ordinances. In view of this, I am unable to comprehend why it is not authorized to adopt suitable-measures to carry this power into execution.
The legislative assembly of the state is especially authorized to create by special law corporations for municipal purposes. (Const., sec. 2, art. 11.) And the only limitation upon its authority in that respect is, that the acts incorporating towns and cities shall restrict their power of taxation. (Const., sec. 5, art. 11.) The grant of police powers to a city is an absolute necessity. The maintenance of sanitary regulations and good order are the main inducements to incorporate. And if the power conferred for such purposes were a “ barren scepter,” the-'
An act may be of such a character as to constitute two offenses, one against the state and one against the municipal government; and when that occurs, the party committing it may be punished under both jurisdictions. The authorities cited by the respondent’s counsel fully sustain this view. There seems to have been an inclination, however, to accord to a municipal government the right to impose a penalty in such cases by characterizing the act under another name. For instance, if a party were to assault and beat another, the right upon the part of the municipality to punish the act as “ an assault and battery” would not be conceded, but that it could impose a penalty for fighting, or for a disturbance of the peace, would not be denied. Under such a theory the affair would have two aspects. This seems to me to be a sort of flimsy shift, and I think it would be by far more consistent to attach a double aspect to the offense itself than to attempt to attach it to the act. The latter might logically constitute two offenses, but it can con
Another rule seems to have been very much over-strained, and that is, that the power upon the part of a municipal government to prescribe a penalty for doing an act which is an offense under the laws of the state will not be deemed to have been conferred unless a clear intention to delegate it is apparent. The rule is applicable where the power delegated is general; but where a special authority over a particular subject is granted, such as the power to suppress and prohibit a particular practice, and the corporation is invested with authority to adopt ordinances and punish for their violation, the subject is relieved of all doubt. The jurisdiction of the corporation in such case is as complete as terms of grant could make it. How could it be expected that a city government would suppress and prohibit a prevailing vice unless it could provide for the punishment of those engaged in maintaining it. A by-law against the commission of an act, without a vindicatory part, would be as futile as the pope’s bull against the comet. I am fully satisfied that the city of Astoria is authorized under its charter to adopt the ordinance under consideration, and impose the punishment inflicted upon the appellant for its violation.
The third and last point includes the refusal of the