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provide punishment for the offense of violating such ordinances. But the penalty in a bond of this character, which the obligor may become liable to pay on breach of its conditions, is not, either technically or in fact, a punishment for a violation of any city ordinance. If the council passes an ordinance requiring a bond as one of the conditions of granting license, and a person engages in the business for which the license is required without first obtaining it, he might be punished for a violation of the ordinance, and the limitation as to punishment would apply. But if he gives the bond and procures the license, subsequent breaches of the conditions of the bond would not amount to violations of the ordinance. He would simply render himself liable on his contract; and the real question must be, not as to the power to punish, but as to the power to exact the obligation by contract as a legitimate measure of regulation or restraint.

Now, is it to be inferred from the fact that the legislature has limited the amount which the council may impose as a punishment for a violation of a city ordinance, that it intended to withhold the power to require a bond, because a person might thereby incur a liability to pay an amount greater than could be imposed as a punishment? If this reasoning is admissible, no bond can be exacted in any case under the authority given to the city government, for the mode as well as measure of punishment is prescribed, and one operates as a limitation just as much as the other. Certainly, no one will contend that the council has any authority under the provisions relating to punishment for violations of city ordinances to require any bond or other security. A bond to secure in advance the payment of penalties for violations of city ordinances which may happen. subsequently, and not warranted as a measure for securing the performance of some special or peculiar duty to the public, would be additional punishment in itself, and plainly not within the authority to punish conferred by the charter. And if a bond for this purpose might be exacted from one, it might from all; and, indeed, no ordinance requiring it of any particular person or class only could, in any event, be deemed valid. How, then, can the city government insure the performance of public duties on the part of its officers and citizens in those positions of special trust and power where dereliction would be cheaply purchased at the amount which might be exacted as punishment for the violation of city ordinances, if no security in any greater amount can be required?

The only principle which will sustain the objection to the power of the council to require a bond in such cases proceeds to the extent of denying its authority to create an obligation, or require the execution of a contract, by ordinance which may impose a liability in excess of the amount which may be exacted as a punishment for the violation of such ordinance. But if there is a sufficient consideration for the obligation or contract, as there is in cases of this character, I am unable to perceive any reason why the extent of liability upon it

should be affected in any manner by the provisions in relation to punishment for violations of the ordinance creating the obligation or requiring the execution of the contract. Punishment for a violation of a city ordinance under the charter cannot exceed three hundred dollars and ninety days' imprisonment. The amount to be paid for license to keep a “bar-room" or "drinking shop" must be established by ordinance. If the ordinance requires a greater sum to be paid for license than could be exacted as punishment, if a person should proceed to engage in such business, without obtaining license, would it therefore be void? Has the amount of such punishment any relation to the amount which may be required for the license? The bond required as a measure of regulation or restraint stands on the same footing as the license fee in this respect. If the council has the power under the charter to require the bond as a proper measure of regulation or restraint, then the only limitation upon its amount or conditions is that of reasonableness, and the provisions as to the amount of punishment which may be imposed for a violation of the ordinance exacting it can have no bearing. There is no essential connection or correspondence between the legal obligation of an ordinance and the penalty for its violation. If the latter is insufficient, the ordinance may be ineffectual, but is not therefore invalid. In the case at bar, the requirement of the bond is part of the obligation of the ordinance, and quite distinct from the penalty provided for its violation. State v. Whitener, 23 Ind. 124; Whalin v. City of Macomb, 76 Ill. 49. I think the power of the council to require a bond from the applicant should be sustained.

4. It is claimed that the provision in the form of bond given in section 5 of the ordinance for the observance of "all other ordinances of said city" is illegal, and renders the entire ordinance void. The claim is put upon a literal construction of the provision. If this were the proper construction, I should not deny the effect contended for. A requirement to observe all other ordinances of the city would be unequal, oppressive, and void; and as the bond required by the ordinance in this instance is an essential part of the consideration for granting the license--as much so as the license fee itself-the manifest intention of its framers would be violated by permitting the license to issue on any other or different terms. An ordinance thus void in part is wholly void. The good part is incapable of separation from the bad. Austin v. Murray, 16 Pick. 121; Warren v. Mayor, etc., of Charlestown, 2 Gray, 84. But the rule of construction with reference to the subject of the ordinance before considered applies here with equal force. The subject before the council being the licensing of bar-rooms and drinking shops, as the title as well as the body of the ordinance abundantly shows, the expression "all other ordinances of said city" must be held to mean all other ordinances on that subject, and therefore not invalidating the ordinance. State v. McGarry, 21 Wis. 502.

5. The validity of the ordinance is also assailed on the ground that its requirements as to the qualifications of sureties are unreasonable and oppressive. Under the power to restrain, it has been held that a license fee may be exacted. Smith v. City of Madison, 7 Ind. 86. And if a fee may be required under this power, why not a bond with sureties possessing certain prescribed qualifications? The word "restrain," appearing as it does in immediate association with the word "regulate" in the charter, must be accorded some additional effect. And even if the requirements as to qualifications of sureties could not be considered as justified by the power to regulate, it is by no means so clear that they cannot be sustained under the power to restrain. Judgment affirmed.

WALDO, J., dissenting; LORD, J., concurring.

(2 Ariz. 29)





Filed October 16, 1885.


An indictment under the Edmunds anti-polygamy act, that charges the offense of polygamy substantially in the language of the act, is not bad because it charges in the same count cohabitation as following the polygamous marriage.

2. SAME-EVIDENCE-REPUTATION TO PROVE MARRIAGE-ARIZONA STATUTE. It is not error, on the trial of an indictment for polygamy and unlawful cohabitation, under the Edmunds act, to admit as evidence of the marriage the reputation of the parties in the community, when the jury are instructed that the evidence of general reputation, standing alone, would amount to nothing, but was only a circumstance to be considered in connection with other proof and circumstances, there being no positive proof of the marriage.


The acts of defendant outside of the territory in this case held admissible as tending to show the relation he bore to his alleged wives.


A witness who took the census, and who testifies that from his own recollection, irrespective of the official returns, he is able to state what the accused gave him as the names and number of his family at the time he took the census, may use the official returns to refresh his memory.


EVIDENCE OF MARRIAGE-PROOF ACCORDING TO TERRITORIAL LAW. Where the statute of the United States is silent as to what shall constitute a marriage, as well as the method of proving marriage, the statute of the territory prescribing what shall be necessary to constitute a marriage, as well as the territorial law providing the manner of proving marriage, may be properly resorted to and applied in a prosecution under the act of congress.

Indictment for polygamy and unlawful cohabitation.

John A. Rush, Thomas Fitch, and John C. Herndon, for appellants. J. A. Zabriskie, U. S. Atty., and Ed. W. Wells, Asst. U. S. Atty., for respondent.

FITZGERALD, J. These three cases having been tried before the Third judicial district court, at Prescott, Chief Justice Howard, who presided at the trials, submitted the questions involved in the record on appeal to Judges PINNEY and FITZGERALD. The facts involved in the three cases being similar, the questions of law in each case identical, (with the exception of the question of the admissibility of evidence of general reputation to prove the marriage relation, which question arose only in the Case of Tenney; no evidence of general reputation having been offered in the other cases,) by stipulation of parties the three cases were argued and submitted together.

The defendants were each convicted of the crime of polygamy, as charged in the first count of the respective indictments. Motion for a new trial was made in each case, and denied. The defendants were each sentenced to imprisonment in the Detroit house of correc

tion for the period of three years and six months, and to pay a fine to the United States of $500. From the order overruling the motion for a new trial, and from the final judgment, the appeal is taken to this court.

The first assignment of error refers to the overruling of the demurrer to the first count of the indictment, on the ground that the facts alleged constituted two distinct causes of action. The first count, it is true, contains more than was necessary to properly charge the crime of polygamy, but the objectionable words, referring only to cohabitation after properly alleging the polygamous marriage, were clearly surplusage, and could not have misled or worked injury to the defendant. The first count charges the crime substantially in the language of the statute creating and defining the offense. The incorporating into the first count words in excess of what was absolutely necessary to charge the offense, not materially affecting, rendering doubtful, and by no possibility expanding, the offense charged, are but surplusage. It was clearly the intention of the pleader to charge the statutory offense of polygamy in the first and second counts of the indictment, and the offense of unlawful cohabitation by the third count. To say that the expansion of the first count, by the addition of language reciting cohabitation after charging polygamy, and as following the polygamous marriage, could have misled or resulted injuriously to defendant is untenable. People v. Cronin, 34 Cal. 191; People v. Murray, 7 Pac. Rep. 178; Lodano v. State, 25 Ala. 64; U. S. v. Simmons, 96 U. S. 360; 1 Bish. Crim. Proc. 193, 274, 277, 360, 371. We are of the opinion that the ruling of the court below on the demurrer to the first count in the indictment was correct.

The second assignment refers to the ruling of the court in the Tenney Case, the question not arising in the other cases submitted, in allowing the witnesses Hubbell and Barth to testify to the general reputation, in the community where they lived, as to the relation of husband and wife existing between defendant Tenney and his wives. The jury were distinctly charged that the evidence of general reputation, standing alone, would amount to nothing in such a case; that it was only an incident and circumstance to be considered in connection with all the other proof and circumstances, there being no positive proof of an actual marriage ceremony, to enable the jury to find and determine either the main fact charged, the polygamous marriage, or the unlawful cohabitation. The doubt surrounding the admissibility of this character of evidence is removed by a reference to the territorial statute, to which it appears the trial court resorted, in the absence of a congressional enactment or regulation on the subject. Section 123, c. 10, Comp. Laws, provides:

"It shall not be necessary to prove either marriage by the register or certificate thereof, or other record evidence; but the same may be proved by such evidence as is admissible to prove a marriage in other cases.”

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