People v. Miller

The people seek to sustain the conviction and sentence, as to Josephine Miller, upon the ground that it was fairly established on the trial, that she was guilty of keeping a house of ill fame, in the city of Buffalo, in violation of an ordinance duly enacted. If it be conceded that the evidence established that fact, then, it is claimed by her counsel, that the common council did not possess the power to pass an ordinance on the subject, and the same is void. By the charter, the common council were authorized to enact an ordinance, “ To define and prevent disorderly conduct; to prevent all disorderly assemblages, all disturbing noise, all drunkenness in public places, and to punish vagrants, beggars, and disorderly persons as defined by law.” See Charter, subdiv. 2, § 8, tit. 3. Under the power conferred by these provisions, the common council enacted the following ordinances :

“ § 1. Disorderly conduct is defined to be the conduct or commission of any of the acts prohibited in this chapter, and *480any person who shall do or commit any of said acts shall be guilty of disorderly conduct.”

“ § 2. No person shall keep a house of ill fame, house of prostitution, or assignation house, within the city, or shall in any manner contribute to the support of such houses, or shall voluntarily reside therein.” §§ 1 and 2, chap. 2.

A fine not less than five dollars, nor more than one hundred dollars, was imposed for each violation of these ordinances.

Keeping a house of ill fame is made a .misdemeanor by statute, as it was also by the common law. Penal Code, § 322 ; 2 Wharton's Crim. Law, § 1449. As the act imputed to the accused is a crime by the general law of the state, and ample provision is made for its detection and punishment, it is argued in behalf of the respondent, that the provisions of the charter already quoted do not confer upon the common council the power of declaring that the keeping of a house of ill fame is disorderly conduct. We do not concur in the limitations thus sought to be placed upon the authority of the common council, and are of the opinion that it possessed the power to enact ordinances on the subject and to punish the offender by the imposition of a fine. It will be observed that the common council has not attempted, by any ordinance, to punish an offender for keeping a house of ill fame, nor to interfere with the administration of laws pertaining to that subject; nor did the legislature intend to vest any such power in that body. It has simply declared by the ordinance that a person who keeps a house of ill fame is a disorderly person. By subdivision 2, § 8, title 3, the common council are authorized to punish vagrants, beggars and disorderly persons as defined by law. The Code of Criminal Procedure has defined who are disorderly persons, and in terms includes all persons who keep a bawdy house, or house for the resort of prostitutes. § 899. This is but a re-enactment of the provisions of the Kevised Statutes on the same subject. 2 R. S. 993, 5th ed.

The keeper of a house of ill fame is a disorderly person, and his conduct tends to disturb the peace of the community where the brothel is located, and it did not need legislation to declare him such. He is, however, by the statute in distinct terms declared to be a disorderly person and also a criminal.

*481If this respondent kept a bawdy house as charged, she was liable to arrest and to be dealt with as a disorderly person, or she could have been indicted and punished as a criminal, for keeping a house of that character. - The offenses are separate and distinct, and are made so by the statute. Her trial and conviction for either one of the charges would be no bar to a prosecution for the other, although each charge should be based on the same act, to wit: keeping a house of ill fame. People ex rel. Van Houter v. Sadler, 3 N. Y. Crim. Rep. 471. These considerations, as we think, fully meet and refute the attack made upon the validity of the city ordinances on that subject, as being without authority.

It is also argued in behalf of the accused, that the justice, at the time and place of the trial was without jurisdiction to hear and determine the charge made against her. The proceedings were summary, and the justice before whom the conviction was had, was acting as a justice of police, assigned to attend at the police station, as provided by section 23, chapter 436, of the Laws of 1880. By a provision of the charter, police justices have and possess all the powers conferred bylaw upon justices of peace of towns, in proceedings in criminal eases, and in the execution of the laws relative to the internal police of the state. The powers of the justice designated to attend at the police stations, are clearly defined by the Act of 1880, as follows : “ To try cases of drunkenness, vagrancy, and all other offenses against any of the laws of this state, or the ordinances of the city of Buffalo, which may be tried summarily and without a jury, by a justice of the peace, or a Court of Special Sessions, committed by any person he shall find confined in the station house, and to sentence every person, found guilty of any such offense, pursuant to statute or ordinance creating" such offense.” In all other cases, said justice of the police shall have and possess the powers and jurisdiction conferred by the city charter, and shall proceed in all respects as therein mentioned. If the person found in the station house and brought before the justice is charged with a criminal offense, it is his duty to enter the charge in a book kept for that purpose, and send such person to the police justice for examination. If a person is charged with a violation of an ordinance of the city, he is required to *482enter the charge in his book and to proceed in a summary manner to investigate the same, and if the accused is found guilty, to impose the fine proscribed by the ordinance.” It is thus clearly established, that the justice of the police, as he is designated when attending at the station house, possesses the power and jurisdiction to try, in a summary manner and without a jury, all persons charged with disorderly conduct as provided by the city ordinances. People ex rel. Murray v. Justices, 74 N. Y. 406.

We have, however, reached the conclusion, that the judgment of reversal should be affirmed and the accused discharged, for the reason that the record does not show that she was ■charged with the violation of any city ordinance, and the charge made was that of a misdemeanor for keeping a house of ill fame. In the charge, as .made, no reference is made to a city ordinance, nor is she charged with being a disorderly person. 'The justice states in his return that Josephine Miller xvas •charged with keeping a house of ill fame, and the other defendant as being an inmate. It does not appear from the justice’s ¡return that the by-laws were given in evidence and the proof ■tended to show, that the respondent Miller was a keeper of a house of ill fame.

If the accused was charged with disorderly conduct as defined by the city ordinances, she had a right to take issue upon the existence of the ordinance, and to show, if she could, that it was not duly enacted and never became operative. The •court cannot take judicial notice of the existence of city ■ordinances, and in ..all proceedings against individuals charged with a violation of the same, they are to be proved and read in ■ evidence for the purpose of maintaining the charge of violating ■the same.

As to the respondent Miller, we are for the affirmance of the judgment of reversal, upon the ground that the record does •not show that she was charged with being a disorderly person, •or for violating the city ordinances on that subject, but, as it appears from the records, she was charged with the crime of keeping a house of ill fame—a misdemeanor which the police justice had no jurisdiction to try and determine, when acting as ,a justice to the police at the station house.

*483As to the other respondent, JSTellie Russell, we are for an affirmance, upon the ground that it does not appear from the return of the justice, that she was convicted of violating a city-ordinance.

Judgment order appealed from affirmed.

Smith, P. J., and Bradley, J., concur.