Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1882-10-24

case were fully considered aud determined
in the case of the State vs.. Kitty Smith,
submitted ct the same term.
The order should be affirmed.
VANDEEBURa, j.
Judge Gilfiilam's Opinion.
. 1 dissent upon the grounds stated by me
in the case OF the State VS.. Olsen, 26 Mimi,
5O7. G11r111AN. CD.
That opinion is as follows:
I concur in the opinion of my associates
that the second plea was correctly over
ruled. I also concur in the opinion of Mr..
Justice Berry, that if the conviction under
the city ordinance was valid conviction,
it is bar to the Indictment. A person is
to be punished because he wilfulIy does an
act which the law prohibits, or omits doing
an act which it commands. The doing of
the prohibited act, or emitting the act en-
Joined, constitutes the legal ofense. The
fact that there may be several statutory
prohibitions of an act, OR that several pro
hibiting statutes may designate tho oTense
by different names, does not multiply the
act SO as to make the doing of it several
distinct offenses.
The United States and the state is each
an Independent political jurisdiction, and,
from necessity, each must have power to
protect itself, and to define and punish Of
fences against its jurisdiction and sover-
eighty, without regard to what may be
done by the other. The constis
tutional inhibition to punish twice
for the same offense was not intended to
reach those cases where, in the proper ex-
ercise of their Pc ~ers, the United States
and a state have each declared an act to be
an offense against it. And the cases in
which it has been held that where the same
act is an offense against a law of the Uni
ted States, and also of state.
conviction under one is
no bar to an Indictment under tho other,
do not apply in principle to cases where it
is proposed to punish an act several times,
because several times prohibited by or un-
der authority of the same political juris-
diction. which is this case.
As to the validity of the ordinance,
have no doubt. Section 3, chapter 4, of the
city charter provides: sTle common coun-
Gil shall have full power and authority to
declare and impose penalties and punish
ments, and to enforce the same against
any person or persons who may violate
any of the provisions of any ordinance,
rule or by law passed or ordained by them !;
and all such ordinances and bylaws are
hereby declared to be and have the fo:ce of
law; provided, that they be not reprgnant
to the constitution and laws of the United
States, or of this state; and for
these purposes shall have authority by
ordinances, resolutions or by laws, X X +
to suppress disorderly houses or groceriesr
aud houses of ill-fame, and to provide fos
the arrest and punishment of the keeper
thereof" Special Laws 1868, pages IS, 20
Fines penalties and punishments imposed
any ordinance, bylaw, or regulation of
said city, may extend to fine not exceed
ing one huncred dollars, and imprison-
county Jail not exceeding
thirty days, or both, and to be fed on
bread and water, at the discretion of the
city justice" Id. p. 75. Here is al ex-
press and specific grant of power to pun
ish keepers of houses of ill-fame, by fine
not exceeding 500 and imprisonment not
exceeding thirty days. 1t is suggested that,
as this ofense is punishable
as felony under the general law of the
state, an ordinance imposing less punish
monG would De repuGuaut 10 the general
law, and so, under the proviso in section 8,
would be prohibited. This construction
would make general clause prvail over
and defeat special and particular
provisions OF the act. The reverse
is the proper rule of construction. It must
be presumed that, when the charterwas
passed, the legislature knew what punish
ment the general law provided for this
offense; and to suppose that, when it i'm
powered the council to punish it, only in a
less degree, it intended that difference
in the punishment imposed by the
general law and thesordinance should rem
der the latter imperative, is to impute to
it an absurdity. The more reasonable in
depreciation is, either that the clause as to
repugnancy was not intended to apply to
the powers specifically and in detail con-
ferred on the council, or that mere diff
ference between the punishments under
the general law and the ordinance was not
case of repugnancy, within the mean
ing of the proyiso.
i. I am of the opinion that the demurrer
to the third plea was rightly overruled.