
    Supreme Court—General Term—Fifth Department.
    
      October, 1885.
    PEOPLE v. MILLER AND RUSSELL.
    Disorderly Conduct.—City Ordinances.—Keeping House ill fame.—Jurisdiction Justice to Police City Buffalo.
    By the charter of the city of Buffalo, the common council are authorized to enact ordinances “to define and prevent disorderly conduct . . . and to punish . . . disorderly persons as defined by lawand accordingly said council passed the following: “ § 1. Disorderly conduct is defined to be the conduct or commission of any of the acts prohibited in this chapter; and any 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 . . . or shall voluntarily reside therein.”
    
      Meld, that notwithstanding the keeping a house of ill fame is a misdemeanor by common law and statute, and ample provision is made for its detection and punishment, said common council had power to enact such ordinances as to disprderly persons and to punish the offenders, as such disorderly persons, by a fine.
    The statute declares the keeper of a house of ill fame a disorderly person, to be dealt with summarily, and also a criminal, subject to indictment. The offenses are separate and distinct, and a trial and conviction for either one of the charges would be no bar to a prosecution for the other, although each is based on the same act, to wit: keeping a house of ill fame.
    A justice to the police of the city of Buffalo, assigned to attend at the police station under L. 1880, ch. 436, § 23, has 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.
    To uphold a conviction before such justice, it must appear from the record that the acccused was convicted of violating a city ordinance.
    Where the record on appeal from a conviction before such justice does not show that the accused was charged with being a disorderly person, or for violating the city ordinances on the subject, but shows that she was charged with the crime of keeping a house of ill fame, that being a misdemeanor which the justice has no jurisdiction to try when acting as a justice of the police at the station house, the conviction cannot be upheld.
    
      Where one is charged with disorderly conduct as defined by city ordinance, he has a right to take issue upon the existence of the ordinance, and to show, if possible, 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 persons for violations thereof, they are to be proved and read for the purpose of maintaining the same.
    This is an appeal by the .plaintiff from the judgment and order of the Court of Sessions of Erie comity, reversing a judgment of Andrew J. Dayton, a justice of the peace of the city of Buffalo, designated to attend police station house Wo. 1 in said city, convicting defendant Josephine Miller of keeping a house of ill fame, and defendant Wellie Russell of being an inmate thereof, and fining the defendant Miller $20 and the defendant Russell $5.
    The conviction occurred April 12, 1885. The order of the Court of Sessions on appeal was entered May 20, 1885.
    The opinion of the county judge, Hon. William W. Hammond, filed upon making said order of reversal, shows that it was granted upon the grounds :
    1. That the appeal would lie as an appeal from a special proceeding of criminal nature under the amendment to the Code of Criminal 'Procedure by chapter 372, L. 1884.
    2. That the provisions of the city charter and ordinances are in conflict with those of the Penal Code, § 322, and Criminal Code, § 188, and therefore the justice to the police should have sent the case to the police justice, and had no jurisdiction to hear or determine it.
    The question of the right of the people to take this appeal to the Supreme Court, was waived by agreement of counsel.
    Further facts appear in the opinion.
    
      Edward W. Ilatoh, district attorney, and Tracy 0. Becker, of counsel for the people, appellant.
    I. The piovisions of the city charter and ordinances are not in conflict with and superseded by the provisions of the Criminal and Penal Codes, as contended by the learned comity judge. Charter City of Buffalo, L. 1870, ch. 519, title 3, §§ 8, 10, 11, 13, 14, 15, 17; title 10, §§ 1, 2, 3, 4, 5, 6, 7; Act in relation to Buffalo police, L. 1880, ch. 436, §§ 19, 20, 23.
    It is well settled that the legislature may confer power to hear, try and determine certain classes of offenses summarily, upon inferior magistrates. And there is no constitutional provision that these acts conferring such powers should not be private or local acts as well as general acts. Matter of Bayard, 25 Hun, 546.
    We maintain that a fair construction of those acts is simply that when the justice of the police finds a man in the station house charged with an offense such as “ drunkenness, vagrancy,” or one against any of the laws of the state or the ordinances of the city of Buffalo which may be tried summarily by a justice of the peace or a Court of Special Sessions, he may, by virtue of the power conferred upon him by the act of 1880, creating the police department, go on and try the offense and “ sentence pursuant to the law or ordinance.”
    Where he finds such person charged with an offense not triable by him summarily, but by a jury, he must proceed according to title 10 of the charter of 1870, viz : If the person is charged with a violation of the ordinance of the city, if he, the justice, deems it expedient, or the person requests it, he must, when it is punishable “by fine, duly issue a warrant at the suit of the city,” and when it is punishable by imprisonment, “issue his warrant and cause such person to be taken before the police justicebut if he shall not “issue his warrant above provided, he shall proceed summarily to hear, try and determine the charge,” etc. That is to say, if ho does not deem it expedient, or the person so charged does not require that the warrant be issued, etc.. Applying these acts to the facts of the case at bar, we find from the amended return of the justice that “the defendants consented to be tried at their own request,” etc.
    II. It must be conceded that the offense of disorderly conduct in keeping a house of ill fame is punishable by the provisions of the Penal Code, section 322, and of the Code of Criminal Procedure, section 118, and is an offense which may be indicted by a grand jury. Yet the law seems to be well settled, both on principle and authority, that “ the same act may constitute an offense both against the state and the municipal corporation, and both may punish it without violation of any constitutional provision.” Cooley Const. Lim. 199; 1 Dillon Mun. Corp. § 302 ; Rogers v. Jones, 1 Wend. 261 ; Mayor v. Hyatt, 3 E. D. S. 156; Mayor v. Allaire, 14 Ala. 400; Ambrose v. State, 6 Ind. 351; Waldo v. Wallace, 12 Ind. 582 ; Rice v. State, 3 Kan. 141; State v. Crummey, 17 Minn. 72 ; State v. Cowan, 29 Mo. 330; McDonald v. People, 26 Hun, 156. That the legislature intended that the city of Buffalo should have ordinances prescribing punishments and modes of procedure for punishing the same offenses provided for by general laws, is “manifest and unmistakable.”
    III. But if these laws are held to be in conflict with the provisions of the Penal and Criminal Codes, we contend that they have been in express terms excepted from the effect of any such conflict by the following sections of said Codes, viz.: Code Crim. Proc. § 725; Devine v. People, 20 Hun, 98; People v. Justices, 74 N. Y. 406 ; Penal Code, § 992.
    
      Andrews & Hill, for the respondents.
    I. The appeal herein to the said Court of Sessions, was properly allowed, and said court had jurisdiction to review the proceedings below. Code Crim. Proc. §§ 5, 515 and 749, as. amended by ch. 372, L. of 1884; People v. Phillips, 1 Park. 95, cited and approved, 6 N. Y. 324; 4 Bl. Com. § 280 ; Bennac v. People, 4 Barb. 167.
    Certiorari to review summary convictions, extends to all legal questions, as to regularity of procedure, or sufficiency of evidence. Mullins v. People, 24 N. Y. 399; Moorewood v. Hollister, 6 N. Y. 309 ; §§ 2016, 2120, Code Civ. Proc.
    
    II. The justice had jurisdiction only of offenses triable summarily and without a jury, and not of crimes; and the conviction herein was illegal. §§ 3-5, title 10, ch. 519, L. 1870 ; § 23, ch. 436, L. 1880 ; Warren v. People, 3 Park. 586; cited and approved in Jacobowsky v. People, 6 Hun, 525; 64 N. Y. 659 ; Hill v. People, 20 N. Y. 368.
    III. The keeping a “ house of ill fame ” was a crime at common law and is made a misdeanor by statute. 2. Wh. Cr. L§ 1449 ; § 322, Penal Code; People ex rel. Van Houter v. Sadler, 3 N. Y. Crim. Rep’ts, 471. Quaere: whether the voluntary residing in such house as prohibited by § 2 of ch. 2, City Ordinances, and punishable upon a conviction by fine and imprisonment. § 16, ch. 2, City Ordinances, and § 6 of title 10, ch. 519, L. 1870, is a statutory crime ? Penal Code, § 3.
    IV. Municipal corporations have none of the elements of sovereignty, and cannot enact ordinances in contravention of statutory law or fundamental rights. Mayor v. Nicholas, 4 Hill, 210 ; Dunham v. Rochester, 5 Cow. 462 ; Durst v. People, 51 Ill. 286 ; Judson v. Reardon, 16 Minn. 431; State v. Paterson, 34 N. J. L. 163 and 390 ; 1 Dill. Munic. Corp. § 252 ; St. Louis v. Weber, 44 Mo. 547 ; § 1, art. III, N. Y. Const.
    V. The provisions of said city ordinances as to disorderly persons, in so far as they are inconsistent with statutory law, are superseded thereby, and are null and void. §§ 8, 11, title 3; § 6, title 10, ch. 519, L.1870 ; §§ 2, 16, ch. 2, City Ordinances ; Code Crim. Proc. §§ 717, 899-913, 962, 963 ; People ex rel. Van Houter v. Sadler, supra ; Wood v. City of Brooklyn, 14 Barb. 425 ; Bish. Stat. Cr. §§ 16, 17, 22 ; City of Canton v. Nist, 9 Ohio St. 440 ; 1 Hill, 355 ; People v. Carroll, 4 Park. 73.
   Baekeb, J.

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 any 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.

If 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 enter 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.

As 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.  