HENDERSON, J.
Appellant was prosecuted by information in the court below for permitting gaming in a public house of which he was proprietor, under section 881, Comp. Laws. He was tried by a jury and fined $50. From this judgment of conviction defendant appealed. The only question presented is, can crimes of the class charged be lawfully prosecuted by information? This question was fully argued and elaborately considered by the district judge, on motion to quash the information. His opinion was reduced to writing, and is a very clear and, we think, correct determination of the question, and we adopt it as the opinion of this court. The opinion is as follows:
“This is a motion filed by defendant to quash the information for two reasons: (1) Because the offense cannot be prosecuted by information in the district court, but must be by indictment. (2) Because the information is not made upon oath or affirmation showing probable cause for the prosecution.
“The information is filed by the district attorney, ex officio, and is supported by an affidavit made by himself, stating the facts to be true according to his information and belief.
“Counsel have exhibited great zeal, learning, and research, in the preparation and presentation of the questions arising upon this motion, and have fairly over whelmed the court with arguments, briefs, and books in support of their respective positions. I have listened to the arguments attentively and patiently, read the briefs carefully, and examined the authorities as thoroughly as time and the press of other business would permit. It is but a just recognition of the ability, labor, and diligence of counsel to say that I am satisfied the whole ground has been covered, and all the law bearing upon the case in any manner has been found, examined, and presented at this hearing.
“The first ground of the motion proceeds upon the theory that the section of the statute upon which this prosecution arises is a special statute with a limited application, and that the latter act authorizing the prosecution of all misdemeanors by information does not affect it. Section 881, Comp. Laws 1884, provides that if any proprietor or superintendent of any public house where spirituous or malt liquors are sold, shall permit any games to be played with cards, dice, etc., such person on conviction shall be fined. Section 882 prohibits all persons from frequenting or keeping any gaming table under the penalty of a fine. Section 883 prohibits all persons from betting at any gaming table, etc. Section 884 provides that for any violation of the provisions of the foregoing sections the person so offending shall be presented before some justice of the peace, or by indictment by a grand jury, etc. These sections are copied from the Compiled Laws of 1865, into the compilation of 1884.
“In 1872 the legislature passed an act authorizing the prosecution of all misdemeanors by information. In 1874 this act was amended, giving justices concurrent jurisdiction, and as amended it is found in the Compiled Laws of 1884 as section 2490.
“That section 881, defining the offense for which this 0prosecution is instituted, is a general statute, is very clear. It affects all persons alike who by their conduct bring themselves within its provisions. A general statute is defined to be one which affects all the people, or all of a particular class. Bish. Writ. Law, § 42. When it concerns a class in distinction from individuals it is treated as general. Sedg. St. & Const. Law, 24, 25. Bish. Writ. Law, § 42 c. A private or special statute (and these words appear to be used interchangeably) is one which affects only particular individuals or things. Bish. Writ. Law, § 42 d. The section under consideration does not refer to any particular individual, but to all that class of persons who permit games to be played with cards, etc., in their houses where spirituous or malt liquors are sold. Section 884 is a general statute also, and provides a mode of procedure for the trial and punishment of all persons of the class mentioned in section 881. It says that such persons shall be indicted by the grand jury. But section 2490, passed long after the passage of section 884, provides that all misdemeanors may be prosecuted by information. This is a misdemeanor. Section 2490 is later in time of enactment, and is repugnant to the provisions of section 884, and under a fundamental rule of construction, works a repeal of section 884, to the extent of the repugnancy, or, at least, it works an amendment of that section, so that both, taken together, provide for the prosecution of misdemeanors of the kind mentioned in the sections preceding section 884, by indictment and information, as concurrent remedies. Sedg. St. & Const. Law, 104. It follows from what has been said, that an information may be resorted to in this class of cases.
“The second ground of the motion presents a question of greater difficulty. It resolves itself into two questions: First. Must an information be supported by an affidavit? And, second, if so, is the affidavit in this case sufficient?
“It was conceded in the argument that if the first proposition should be answered in the affirmative, the second must be answered in the negative, i. e., if it should be held that an affidavit was necessary, then the affidavit filed in support of the information in this case must be held insufficient. The statute does not undertake to define and information, or prescribe its form or contents. We must therefore look to the common law to ascertain what it is and what its requisites, in the particular in question, are. At common law an information is defined to be an accusation or complaint exhibited against a person for some criminal offense, either immediately against the king, or against a private person, which from its enormity or dangerous tendency the public good required should be restrained and punished, and differs principally from an indictment in this: that an indictment is an accusation found by the oath of 12 men, whereas an information is only the allegation of the officer who exhibits it. 3 Bac. Abr. 635, tit. ‘Informations.’ Bacon says there were two kinds of criminal informations in use in England under the common-law procedure. The first was for offenses more immediately against the king, and was filed by the attorney general, ex officio, and without leave of court. The second was for offenses against private individuals, and was exhibited by the masters of the crown. Prior to the adoption of the statute of 4 and 5 Wm. & Mary, c. 18, informations of this class were filed as a matter of course; but under the provisions of this statute such informations could not be filed by masters of the crown, except upon leave of court, and were required to be supported by the affidavit of the person at whose suit the same was filed, and such person was also required to give security for costs. 3 Bac. Abr. 635.
“It is contended here that the second class has been adopted in this country; that in England the first class could only be filed in cases where the misdemeanor was committed against the king's person, his prerogative, his revenue, his officers, or the public safety, and that as we have no king, nor any person exercising kingly powers and prerogatives, the first class of informations has no applications here. In support of this position counsel cite: 4 Bl. Comm. 307-309; 1 Chit. Crim. Law, 848-506; Ex parte Burford, 3 Cranch, 448; State v. Gleason, 32 Kan. 245, 4 Pac. Rep. 363; Arch. Crim. Pl. & Pr. 69, 70. Is this position sound? It may be admitted that, for the misdemeanors of the kind mentioned, the attorney general could, and did, file informations, but was he limited to that class? Could he not file and information ex office upon the commission of a misdemeanor of either class? Blackstone, p. 309, supra, (after stating the two king's of informations, and that the first are properly and truly the king's own suits,) says: ‘The objects of the king's own prosecutions, filed ex officio by his own attorney general, are probably such enormous misdemeanors as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his functions.’ Coke, Chitty, and Bacon, as cited above, sustain this statement of the power of the attorney general, and that it was the practice for all other informations to be filed by the master of the crown. But it may be doubted whether these authors state the whole law on the subject on the pages cited. Blackstone seems to think that the attorney general was limited to the filing of informations for offenses against the king. But Chitty says (1 Crim. Law, 884:) ‘Informations may be filed by the attorney general for any offense below the dignity of felony, which tends, in his opinion, to disturb the government, or immediately interfere with the interests of the public, or the safety of the crown. He most frequently exercises this power in cases of libels on governments or high officers of the crown, etc. Her seems, indeed, at his option to exert it when any offense occurs which may thus be prosecuted in the crown office. The attorney general is the sole judge of what public misdemeanors he will prosecute. He may file an information against any one whom h...
