Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-06-10

authority by ordinance to suppress houses or
ill-fame within the city, to provide for the ar
rest and punishment of the keepers of these
Shy a fine not exceeding BOO and imprison-
ment in the city prison or county Jail not ex-
ceeding thirty days, or both, and to be fed on
bread and water in the discretion of the city
Justice" Ooh. of char. of st. Paul, sec. 8,
subdivision and 49, 1t is given as spe-
cifc grant of power after a general authority
already conferred to enact all ordinances deemed
expedient and not repugnant to the constitu-
ton and laws of the United States and of the
State, for certain purposes therein
named of municipal character solely
and exclusively, and it is expressly declared
that such specific power is given for the like
general purposes, thus excluding any influence
that it can be used for the prosecution and
punishment of offenses against the State, or
for any other than strictly municipal purposes.
According to familiar rule grant of author
ity thus specifically enumerated must be taken
as within the intention of the legislature, and
as not embraced by the proviso as to repug-
nancy. On the contrary it Is plain declara-
ton by the legislature that its exercise by the
corporate authorities for municipal purposes
alone wss contemplated and intended, and that
such, its exercise would not be in conflict with
the statute then in force making
the act of keeping house of
ill.fame felony and providing for the punish
That this was the legislative intention is
further evidenced by the fact that in 1878 ex-
press authority was given to the common coun-
Gil of said city to appropriate and set apart in
whole or in part all fines collected in the exer-
else of the power from the keepers of houses OF
ill-fame in said city for the use and support OF
institutions established therein for the care and
reformation of fallen women. Oh. 143, Sp.
Laws 1879
AS to the question of repugnancy between
the statute and the supposed ordinance, the
former looks to the maintenance of the "peace
and dignity of the State" by the punishment
of an unlawful act criminal wherever
committed, without reference to the particular
interests of any locality; the latter to the
preservation of the morals of particular COM
munity, and to its protection against the Local
evils and nischiefs resulting to it from the
commission of such wrongful act in its midst
to which such alone both the prohibition, and
| the punishment provided by the ordinance are
directed without any reference to the criminal
| character of the act as public offense.
They are not inconsistent with each other
and within the principle of the State VS.. Lud
| wig, 81 Mimi, 2O2-207, there is no repugnancy
between them, as would clearly have been the
case if the ordinance had merely attempted tC
| regulate what the statute absolutely prohibits
The remaining question respects the liability
of defendant to punishment, both under the
ordinance and the statute both being in force
| and it being conceded that the act which
constitutes the ofense, or ont of which it arose
| in the same in each case. 1t is objected that
conviction and punishment under both would
| work the infliction of double punishment fol
the same act, and that this is prohibited by tbs
| constitutional guaranty that "No person fol
the same offense shall be put twice in jeopardy
| of punishment Art. l, Sec. z, Constr Tht
| term "offense' in criminal law is not identica
| in meaning with the word 'act" it imparts
| IN legal sense. and in infractioI
or transgression of a law-the willfu
of an act which is forbidden by Law
or emitting to dowhat it commands, Il Wharf
U.S. VS.. Boorvier, 254, Moon vs.Ghe people of The
| State of Ill. IL, Howe 10.
| The identity of an ofense therefore is to bt
| determined by reference both to the act done
| and the law which it violates; and if the ac
itself is a transgression of two distinct laws
it results in two offenses. The case above
cited (Moon VS.. Ill., and that of Fox VS.
| State of Ohio Howe 435, furnish illustrations
of the truth of this proposition and establish
| the doctrine that single act done by party
| owing allegiance both to the government of the
United States, and the government of a State
| in violation of the laws of BOTH CONSTITUTES
| two distinct offenses and subjects him to thu
| liability of conviction and punishment unde
| both.
| This doctrine is fully approved by that cour
| in United States VS.. Maryland 8, How 599
United States VS.. Cruikshank 90; United States
| $50, and in the recent case of ex parte Siebold
reported in vol. 81, No. Ii, Albany Law Journal
| The principle of these decisions, says Mr.
| Cooley, applies to the violation by one and the
| same act of State law and a valid municipal
| ordinance. That principle is this: That every
| government competent to the enactmant of
law with penalty for its infractien, which
shall be obligatory upon those subject to it,
| Jurisdiction, may punish any violation
| thereof, though the offense may also hav,
been subjected to punishment under an
other jurisdiction for an infractiOn of its law
| by the same act. Within the limits of it,
| authority to enact ordinances, with the force o.
| law for the government of its citizens mum
| cipal corporation is government, and if thu
statute creating it so permits, it may, through
! its own separate tribunals, exercise the powers
of government IN respect to all Offenses com
mitted against it.
Mr. Cooley, in speaking upon this subject
| says: ''The same act may constitute an offenst
| against both the State and the municipal cor
| poratiOn, and may be punished under botf
without violation of any constitutional prin
| ciple." And this doctrine he also says is sus
| tanned by the clear weight of authority (Cool
| ey's Court Laws, 1919, and note 4.
Mr.. Bishop expresses concurrence with these
pears to stand thus: If the statute so autho
rizes, it is not apparent why city corporation
| may not impose special penalty for an ac
done against it, while the State imposes also
penalty for the same act done against the
State" And he regards the doctrine as anal
agous to that which obtains in respect to an act
done in violation of the laws both of the
United States and of State, which he says
may now be deemedssettled. Bishop or
| State Grimes, 49,
If the seviews are correct,as they are believed
| to be, the constitutional guaranty invoked by
| the defendant has no application to the facts
| of the case. Her conviction and punishment
! under the ordinance was for an offense against
the city which it was legally authorized to pun
| ish. She now stands indicted for an offensC
committed against the State by q violation Of
| its laws.
The two are separate and distinct offenses
and if guilty, she is liable to the punishment
| for both.
In my opinion the demurrer to the thirc
plea ought to have been sustained, and tn,
order of the court below overruling itsshould b,
reversed. CORNELL, J