State v. Oleson
| Decision Date | 09 June 1880 |
| Citation | 26 Minn. 507 |
| Parties | STATE OF MINNESOTA <I>vs.</I> ANNIE OLESON. |
| Court | Minnesota Supreme Court |
The defendant, being arraigned in the district court for Ramsey county, Wilkin, J., presiding, upon an indictment for keeping a house of ill-fame in the city of St. Paul, in that county, pleaded (1) Not guilty; (2) an ordinance of the city of St. Paul, which, it was contended, superseded Gen. St. c. 100, § 9, within the limits of the city; and (3) a prior conviction and sentence in the municipal court of St. Paul, on a prosecution under the ordinance, for the identical act and offence charged in the indictment. The prosecuting attorney demurred to each of the second and third pleas. The demurrer to the second plea was sustained, and that to the third plea was overruled, and thereupon the presiding judge reported the case to this court, pursuant to Gen. St. 1878, c. 117, § 11 Geo. P. Wilson, Attorney General, and E. G. Rogers, for the State.
Henry F. Masterson, for defendant.
The defendant was indicted for the crime of keeping, in the city of St. Paul, a house of ill-fame, resorted to for the purpose of prostitution.
The second plea was: "That, under and pursuant to the act of the legislature, entitled `An act to reduce the law incorporating the city of St. Paul, in the county of Ramsey, and state of Minnesota, and the several acts amendatory thereof, into one act, and to amend the same,' approved March 6, 1868, and under and pursuant and in accordance with the authority in and by said act granted to and vested in the common council of the said city of St. Paul, the said common council of the said city of St. Paul did, on the 7th day of October, 1869, duly pass, adopt and publish a certain ordinance to suppress houses of ill-fame in said city, and to provide for the arrest and punishment of the keepers thereof, and did, in and by said ordinance, provide for the arrest and trial before, and conviction and sentence by, the city justice of the said city of St. Paul; and which said ordinance provides for and regulates the proceedings for the arrest, trial, conviction and punishment of all persons who shall keep houses of ill-fame, or places resorted to for the purpose of prostitution, within the limits of said city, thereby providing for the punishment of the specific offences and specific acts charged in this indictment; that the aforesaid act was amended by an act entitled `An act to amend an act, entitled An act to reduce the law incorporating the city of St. Paul, in the county of Ramsey and the state of Minnesota, and the several acts amendatory thereof, into one act, and to amend the same,' approved March 8, 1875, by which said act there was established in said city a court of record, called the municipal court, to which said court therein was granted all the powers and authority theretofore given in said city to the city justice." To this plea the state demurred, and the demurrer was sustained.
The defendant's contention, as respects this plea, is that the ordinance referred to "has all and the same force, operation and effect that it would have had if it had been enacted directly by the legislature as a special act; that is to say, it takes the place (in the city of St. Paul) of the general statutes on the same subject, the same as if the legislature itself had passed a special act in the words of the ordinance." The same point was made in State v. Charles, 16 Minn. 474, and was decided to be untenable. Notwithstanding the able argument 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 defendant's third plea was "that she has already been duly convicted and punished, under the charter and ordinances of the said city of St. Paul, of and for the said offence of keeping a house of ill-fame, resorted to for the purpose of prostitution, committed at said city of St. Paul, and in said county of Ramsey, on the first day of January, A. D. 1879, and on divers other days and times between that day and the day of the 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 the same offence and same specific acts of offence, 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, rendered at the said city of St. Paul, on the 19th day of April, 1879." The state's demurrer to this plea was overruled.
The offence for which the defendant was convicted under the city ordinance is, according to the averments of the plea, (the truth of which the demurrer admits,) the same offence 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 a second time, for this would violate the familiar provision of our constitution, "that no person for the same offence shall be put twice in jeopardy of punishment." It is no answer to this proposition to say that one conviction is had, and one punishment administered, through a municipal court, and for a violation of a city ordinance, and that the second conviction and punishment are sought to be had through a district court, and for a violation of a general law of the state. These considerations in no way affect the fact that the second alleged offence is identical with the first. The consequence is that, if the former conviction is valid, the district court was right in holding the defendant's third plea to be a good answer to the indictment, and in therefore overruling the state's demurrer.
But was it valid? It certainly was not if the ordinance was not valid as respects the offence in question. The ordinance reads as follows: "Any person or persons who shall, within the limits of the city of St. Paul, keep a house of ill-fame, or a place resorted to for the purpose of prostitution, * * * shall, on conviction thereof before the city justice, be punished by a fine not less than five, nor more than one hundred dollars, and 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 a house of ill-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 six months; or by fine not exceeding three hundred dollars, nor less than one hundred dollars." Gen. St. 1878, c. 100, § 9.
It appears, then, that the crime of keeping a house of ill-fame, resorted to for the purpose of prostitution, is, under the statute, a felony punishable by imprisonment in the state prison from six months to a year, or by fine from $100 to $300. Under the ordinance, the same crime is a misdemeanor, punishable by a fine from $5 to $100, and by imprisonment in the city prison not more than thirty days, or by either. As respects, then, the punishment of the offence 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 such offence might, through a conviction under the ordinance, satisfy the demands of justice by a much lighter punishment than that which the general law has deemed it necessary to prescribe for offences of that character.
But, on account of its repugnancy to the statute, the ordinance, so far as respects the offence mentioned, is invalid and cannot be sustained. For the city charter, by virtue of which alone the ordinance was enacted, expressly declares that the power to enact ordinances is subject to the proviso, "that they be not repugnant to the constitution and laws of the United States, or of this state." Sp. Laws 1868, p. 69. As the conviction set up in bar of the indictment was under an ordinance invalid and void as respects the offence charged in the indictment, it was a conviction without any authority of law whatever — a conviction for an offence which was not an offence; or, in other words, it was not a conviction at all, and hence the defendant was not, in contemplation of law, put in jeopardy of punishment for the offence for which she is indicted, either by the so-called conviction under the ordinance, or by the prosecution which led to it. It follows that, in my opinion, the district court was wrong in overruling the demurrer to the third plea.
It is true, still, that the charter of St. Paul authorizes the common council, "by ordinances, resolutions or by-laws, * * to suppress * * * houses of ill-fame, and to provide for the arrest and punishment of the keepers thereof." Sp. Laws 1868, p. 70. 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 limited to the imposition of a fine not exceeding $100, and imprisonment in the county jail for a time not exceeding 30 days. The city ordinances for the arrest and punishment of keepers of houses of ill-fame must, therefore, be directed to something else than the simple keeping of houses of ill-fame, resorted to for the purpose of prostitution; as, for instance, to something relating to the manner of keeping them, or, perhaps, to the place in which they are kept.
I fully concur in the opinion of my associate brother Berry, that the precise question raised by the demurrer to the second plea of the defendant in this action was presented to this court, and authoritatively and correctly decided, in State v. Charles, 16 Minn. 474;...
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