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

associate Justice Cornell.
ISupreme Court, October term, 1871
The State of Minnesota plaintiff, VS.. Annie
OlesOn, defendant.
/ fully concur in the opinion of my associate
justice, Berry, that the precise question raised
by the demurrer to the second plea of the de-
PENDANT in this action, was presented to this
court and authoritatively and correctly decided
in the State VS.. Charles 16 Mimi, 474; and
that in following the adjudication in that case,
the demurrer to this plea must be sustained.
The question raised to the demurr to the de-
PENDANTS third plea is whether the latter is good
as plea of former conviction for the same
offense, as that charged in the Indictment
herein. The plea is as follows: THAT she (the
defendant) has already been duly convicted and
| punished under the charter and ordinances of
| the said city of st. Paul of and for the
said offense of keeping house of lll-fame,
resOrted to for the purpose of prostitution,
| committed at said city of st. Paul and in said
county of Ramsey, on the LIST day of January,
| A. d. 1879, and on divers other days and times
| between that day and the day of zthe date
of this Indictment, and has paid the
penalty and suffered the punishment therefor
| in accordance with the provisions of the charter
and ordinances OF said city, referred to in her
second plea, which said conviction is for the
| same offense and the same specific acts of of
tense as regards all matters and things in the
and punishment was had by the judgment of
the municipal court of the said city of st.
Paul, on the 10th day of April, 1879"
| In constituting this plea, regard should be
had to the familiar rule that nothing contained
| in pleading is :. to be taken as admitted by a
| demurrer except such facts as are material and
well pleaded. The averment of due conviction
is but legal conclusion drawn by the pleader
| from the facts stated, and is not admitted.
| The former conviction which is plead, is
| stated to have been under the charter and or
dinances of the city of st. Paul. and by the
municipal court of that city. Unless it was
within the Jurisdiction of that court, and the
provisions of some ordinance authorized by the
charter, of course it was null and void. Outside
the allegations of the plea the court can take no
judicial notice of the particular terms and pro-
visions of the ordinances therein referred to.
| (City of Winona VS.. Burke, % Mimi, 254.)
But whatever their character, it is clear they
| can have no legal validity except as authorized
/ by the charter of the city, in pursuance of
which they were adopted.
| The charter of the city of st. Paul does not
attempt to confer upon its common council
/ any authority to pass ordinances in respect to
any offenses amounting to felonies which may
| be committed against the State In violation of
| its laws, nor for the trial, conviction and pun
ishment of persons guilty of such offenses.
The power which it gives by express and spe-
| cifc grant to enact ordinances for the purpose
| therein named, all of which are municipal;
ito suppress houses of ill-fame" within the
city, "and to provide for the arrest and pun
ishment of the keepers thereof by fine
not exceeding 300, and imprisonment in the
| city or county Jail not exceeding thirty
days." (ch. of city charter, sub. and IS of
sec. 9 confers no authority to provide for the
punishment of any offense committed against
| the State by any keeper of such house in VIC
| latiOn of its laws, and any ordinance enacted
/ with that view and of that character must be
| q nullity, and conviction hereunder void
| And yet this must have been the character of
the ordinance under which the alleged former
conviction was made, if it is conceded that it
| was for the same offense charged in this
Indictment, for that clearly charges an offense
committed against the peace and dignity of
the State and contrary to the forms of the
statute, and not in violation of any ordinance
| Furthermore, as the offense alleged in the
Indictment is a felony under the laws of the
State (Gen'l Sts 1875 Oh. 81, 8. %. Oh. 100, S. 81
| a former conviction for the same offense by the
municipal court of the city of st. Paul would
| be of no effect whatever and could not subject
the defendant to any penalty or punishment,
| inasmuch as that court was wholly without
| jurisdiction to pronounce any judgment con-
corning an offense of that character. 1t was
| only triable upon Indictment properly found
| by grand jury and by a court of competent
| jurisdiction to try indictments. The mu-
nicipal court is invested with no such juris-
diction. The pleais therefore clearly bad so far
| as it attempts to set up former conviction
| and punishment for the same offense. 1t is
| suggested, however, that the plea may be sus-
| tanned, for the reason that it sufficiently al
| leges that the former conviction and punish
ment, under the ordinances, was for the same
/ specific act of the offense charged in the in
dictment, and this perhaps raises the question
both as to the validity:of the ordinance and
| the effect of conviction hereunder as bar
| to any prosecution by Indictment founded
upon the same act.
The statute upon the subject, and upon
which the Indictment is based, enacts that
whoever keeps house of ILL
| fame, resorted to for the purpose of prostitu-
ton or lewdness, shall be punished by imprison-
| ment In the State prison not more than one
year nor less than six months, or to fine not
exceeding three hundred dollars nor less than
one hundred dollars" Assuming that the or
dinance under which the alleged former con-
viction was had, in terms prohibited the keep
| ing of any such house within the CITY, under q
penalty for its violation not in excess of that
prescribed by the charter, it was not in my
opinion unauthorized or invalid.
Keeping house of this character, which the
| statute denounces as felony, without refer
ence to the place of its location, was an offense
at common law because of its evil influence
and effect upon the public morals. Keeping it
in a crowded and populous city where its per-
nicious influence is ever present and constantly
| felt is circumstance greater in aggravation
| of the evil as respects that community.
breeding place of vice and crime, it is contin-
| ual menace to the orderly government of the
city, creating, in the ARRAYS and mischiefs it
causesa necessity for increased taxation for the
preservation of its peace and quiet. These are
special evils that directly and specially affect
the city as municipal government, which are
not provided for by the statute, as they do not
affect the State at large, or at most only re-
motely and in a much less degree. Their sup
preston is essential to the welfare of the mu-
nicipality, and to enable it to accomplish the
purposes of its creation, and any ordinance di-
rected to these ends and not to the punishment
of the offense against the State would be an
exercise of corporate authority for strictly
municipal purpose. The competency of the
State through its legislation to confer such au-
thority, without at the same time surrendering
any of its jurisdiction over the offense against
it, / cannot doubt it would come within the
principle of the rule announced by Mr.. Dillon
in his work on municipal corporations shat
when the act is, in it's nature, one which con-
stitutes two ofenses, one against the State and
one against the municipal government, the lat
ter may be constitutionally authorized to pun
ish it, though it be also an offense under the
State law; but the legislative intention" says
this learned author, "that this may be done
should be manifest and unmistakable, or the
power in the corporation should be held not to
exist" Dillon, M. c., page 302. fully agree
with this learned author as to the correctness
of the rule which it seems to me