| Show OPINION OV or JUSTICE mckean territory of utah I 1 third thira district I 1 court september term tile the people 1873 10 VS chas H douglas dougla 3 the defendant was prosecuted before a justice of the peace on a chai chat charge go of keeping a gambling house in salt fealt lake city A junk JuNi judgment ment mont was rendered against him hirn for and he was committed for nonpayment non payment thereof he is brought into this court by a writ of habeas corpus and hero claims that the city ordinance under which he be was fined and imprisoned isnell is null nuli and void vold J B R mcbride forthe for the petitioner cites iho the city ordinance the laws of utah 53 51 sec see 38 dillon on municipal corporations sees S soo 2 3 y 8 2 michigan 17 michigan K E D hogo hoge for the tho people cites laws of utah p 32 hurd on habeas corpus and aad cooley on constitutional limitations mckean ch J tho the statute section aa title 3 chapter 22 p 53 laws of utah provides a fine for keeping a gambling house of not more than eight hundred dollars or not ding aing one year or both at ohp he deflon of tile tilo court A subsequent city ordinance oi provides a fino fine for that off often tinse linse sc not inot exceed exceeding liAg one opo hundred dollars or not exceeding sit months or both fine and imprisonment the counsel for tho the petitioner urges urge that since the legislative assembly had vided aided one penalty the city coun cil cli had no authority to provide another and that therefore the tho ordinance under which his client was convicted is null and void the authorities bearing upon this question are conflicting but huft it is unnecessary to decide it upon authority in iho tho rity even if the city charter should re bo adjudged to be defective in iq this particular which the court does not intend to adjudge the legislative assembly since the statute cited first above has provided that no up part of the charters of the incorporated cities in irk tills this terri Territory tory tony shan ishall shaU be construed to authorize a city council to in any way licen license eor or tax any igind of gain biln blin geither for money or other property or to license or tax houses of ill fame bawdy oi or other disorderly houses or places but they shall prohibit and abato all ail a such acts houses ses and places as they are herein forbidden to tax or licen license sp sec 2 all laws or parts party of laws law conflicting with til this is a act ct are hereby repealed repeat 4 11 seo see see laws of 1868 1808 p 32 chapter 28 this statute would seem geem to inalia H I 1 un unnecessary pec essary to rely upon judicial decisions egi epi elisions in deciding the question fuestion raised the city council tad had a authority to enact the ordinance fi in n question t the he petitioner has been convicted under it and the writ of hab habeas corpus must be dismissed dismiss dd and the petitioner remanded to pay his fine or serve servo out his imprisonment NOTE noer in the ca case q odthe of the people vs robert C wood the dec decision violl of the court is jis the samo same asin as in the people ploys vs douglas |
