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

OnarIes, 10 mlnn., 4I4, and was decided to be
untenable. Notwithstanding the able argu-
ment of counsel to the contrary, we are of the
opinion that the decision was correct and that
the demurrer to the second plea was properly
sustained.
The defendants plea was ''That she had al
ready 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 ill
fame, resorted to for the purpose of prostitu-
ton, committed at said city of st. Paul, and in
said county of Ramsey, on the lst day of JAN
uary, A. ID. 1879, and on divers other days and
times between that day and the day
of the date of this indictment,
and bas paid the penalty and suffered
the punishment therefor in accordance with
the provisions of the charter and ordinances of
said city, referred to in the second plea, which
said conviction IL the same Offense and same
specific acts of offense as regards all matters
and things in the said Indictment charged,
which said conviction and punishment was had
by the judgment of the municipal court of the
said city of st. Paul on the 18th day of April,
1879.
The States demurrer to this plea was over
ruled.
The offense for which the defendant was con-
victed under the city ordinance is, according to
the aVerments of the plea (the truth of which
the demurrer admits) the same offense for
which she is indicted. If she has been once
duly convicted and punished for it she should
not be convicted and punished for it second
time, for this would violate the familiar pro-
vision of our constitution 'that no person for
the same offense shall be put twice in jeopardy
of punishment" 1t is no answer to this propo-
sition to say that one conviction is had and one
punishment administered through a municipal
court. and for violation of q city ordinance,
and that the second conviction and punishment
are sought to be had through district court,
and for a violation of general law of the
State.
fact that the second alleged offense is identi-
cal with the first. The consequence is that if
| the former conviction is valid, the district
court was right in holding the defendants
third plea to be a good answer to the indict-
ment, and in therefore Overruling the States
demurrer.
But was it valid?
1t certainly was not if the ordinance was not
valid as respects the offense in question.
The ordinance reads as follows:
ANY person or persons who shall, within the
| limits of the city of st. Paul. keep house of
| ill-fame, or place resorted to for the purpose
of prostitution, shall, on conviction
thereof before the city Justice, be punished by
a fine of not less than So. nor more than 300,
| or imprisonment not exceeding thirty days. or
either, at the discretion of the said justice"
The statute under which the defendant was
| indicted is as follows:
"Whoever keeps house of fame, resorted
| to for the purpose of prostitution or lewdness,
| shall be punished by imprisonment in the
| State prison not more than one year, nor less
| than ak months; or by a fine not exceeding
| $500, nor less than $780,
| 1t appears that the crime of keeping house
of il-fame, resorted to for the purpose of pros
| titution, is under the statute felony punish
| able by imprisonment In the State prison from
six months to a year, or by fine from 800 to
$500. Under the same ordinance the same
| crime is a misdemeanor punishable by a fine
from $5 to 800, and by imprisonment in the
city prison not more than thirty days, or by
either.
As respects the punishment of the offense in
| question, the ordinance is clearly repugnant
to the statute. So that If the ordinance were
| upheld, it would follow, from the conclusions
| before reached, that a person guilty of Oh
| offense might, through conviction under the
ordinance, satisfy the demands of justice by
much lighter punishment than that which the
general law has deemed necessary to prescribe
for the effenses of that character.
| But on account of its repugnancy to the
| statute, the ordinance, so far as respects the
| offense mentioned, is involved and cannot be
| sustained. For the city charter, by virtue of
| which alone the ordinance was enacted, ex-
pressly declares that the power to enact ordi-
nances Is subjected to the proviso; that they
| be not repugnant to the constitution and laws
of the United States or of this State" As the
conviction set up in bar of the indictment was
under ordinance invalid aud void as respects
the offense charged, it was a conviction without
any authority of law whatever.
| A conviction for an offense which was not an
| Offense or, in other words, it was not convic-
| ton at ALL and hence the defendant was not in
| contemplation of law but in jeopardy of pun
ishment for the offense for which she is indict-
| ed, either by the so-called conviction under the
ordinance or by the prosecution which led
| to it.
| 1t follows that, in my opinion, the district
court was wrong in overruling the demurrer to
| the third plea.
1t is true still that the charter of St. Paul
authorizes the common council by ordinances,
resolutions or bylaws 4 to suppress
| houses of ill-fame and to provide for the arrest
and punishment of the keepers thereof.
But the ordinances thus authorized must not
violate the proviso against rePugnancy. They
| cannot cover the same precise ground as the
| general law upon the same subject because it
is not competent under the city charter for the
common council to impose the punishment
prescribed by the general law, the authority of
the common council in that regard being lin
| tied to the imposition of fine not exceeding
| 300, and imprisonment in the county Jail for
| a time not exceeding thirty days. The city or
| dinances for the arrest and punishment of
! keepers of houses of ill-fame, must, therefore,
| be directed to something else than the single
| keeping of houses of ill-fame, resorted to for
| the purpose of prostitution, as for instance to
| something relating to manner of keeping them,
or perhaps to the place in which they are kept.
BERRY j.