in delivering a dissenting opinion, used the following language: “Nothing can be more repugnant or contradictory than two punishments for the same act. It would be a mockery of justice and' a reproach to civilization.” But he stood alone in his dissent from the opinion of the court. The doctrine was afterwards held sound in the case of Moore v. The People of the State of Illinois, 14 How. 13.
In delivering the opinion in this last mentioned case, Mr. Justice Gbiee says: “An offence, in its legal signification, means the transgression of a law. A man may be compelled to make reparation in damages to the injured party and be liable also to punishment for a breach of the peace in consequence of the same act, and may be said, in common parlance, to be twice punished for the same offence. Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of both. That either or both may, if they see fit, punish such an offender can not be doubted. Yet it can not be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.” And this is the settled law as laid down by the Supreme Court of the United States.
The rule prevails where the act is punished in two or more ways by the same sovereign. An assault committed in the presence of a court may be punished, in two ways,—first, for contempt of the court, and again in a criminal prosecution for the assault.
In Freeland v. The People, 16 Ill. 383, this court say: “ It is not enough that the act is the same, for by the same act the party may commit several offences in law. In the same act of feloneously taking a quantity of goods, the party may, in law, be guilty of as many crimes as there are separate owners of the goods stolen, and may be punished as for so many distinct larcenies.”
In Gardner v. The People, 20 Ill. 434, this court say: “ An act may at the same time be an offence against the United States government and also against a State government. The same act may also constitute several crimes or misdemeanors, and the trial and punishment for one will be no bar to a prosecution of another growing out of the same act.”
The question in this State has frequently arisen in prosecutions under the ordinances of cities and under the general criminal law of the State, both of which, in some instances, prohibit and punish the same act. The general law and the ordinance are, in effect, both acts of the legislature. City ordinances passed under the delegated power conferred in the city charter have the force, as to persons bound thereby, of laws passed by the legislature of the State.
“ A city council is a miniature general assembly, and their authorized ordinances have the force of laws passed by the legislature of the State.” Taylor v. Carondelet, 22 Mo. 105.
The legislative power of cities is but a part of the legislative power of the State, and whatever law the legislature may enact through the intervention or agency of a municipal corporation, it can enact by itself without such intervention. The legislature can not authorize a city to declare an act a crime which the legislature is prohibited from declaring a crime. And if the legislature has power to make an act punishable in one way under the general laws of the State, and the same act also punishable in a different way under the authorized ordinances of a municipal corporation, the legislature may, if such is its intent, make the same act punishable in different ways under general laws of the State.
There does not appear to be any prohibition on the power of the legislature to declare that the commission of a particular act shall constitute two or more offences, each of a different grade of criminality and punishable in a different manner.
The question most frequently raised is, whether the legislature intended to make an act a double offence, and not as to the existence of the power.
Cooley on Constitutional Limitations, 199, avers that the same act may constitute an offence both against the State and the municipal corporation, and both may punish it without violation of any constitutional principle. Grant on Corporations, 82, states that the same rule prevails in England.
Bishop on Statutory Crimes, book 1, chapter 2, section 23, lays down the rule thus: “If the statute so authorizes, it is not apparent why a city corporation may not impose a special penalty for an act done against it, while the State imposes also a penalty for the same act done against the State.”
The decisions on this subject by the courts of the several States are apparently in hopeless conflict with each other. Dillon on Municipal Corporations, section 301, says: “ Hence the same act comes to be forbidden by general statute and by the ordinance of a municipal corporation, each providing a separate and different punishment. * * * But can the same act be twice punished,—once under the ordinance and once under the statute ? The cases on this subject can not be reconciled. Some hold that the same act may be a double offence, one against the State and one against the corporation. Others regard the same act as constituting a single offence, and hold that it can be punished but once, and may be thus punished by whichever party first acquires jurisdiction.”
In Georgia and Louisiana it is held that a municipal corporation has no power to enact an ordinance touching an offence punishable under the general law of the State. 21 Georgia, 80.
In 3 Kansas, 141, Rice v. The State, the court say: “ It is not necessary in this case to decide whether both the State and the city can punish for the same act; but we have' nb doubt that the one which shall first obtain jurisdiction of the person of the accused may punish to the extent of its power.” In Missouri the rule is clearly announced that the same act can be punished but once, and that a conviction under a city ordinance may be pleaded in bar to an indictment under the State law. The State v. Cowan, 29 Mo. 330.
In Alabama the rule is the other way, and it is held that the same act may be punished under a city ordinance, and at the same time under the general law. 14 Ala. 400.
In Indiana the rule used to be the same as it is now in Missouri, but in Ambrose v. The State, 6 Ind. 351, it was modified, and the court there held that a single act might constitute two offences, one against the State and one against the municipal government. And in Waldo v. Wallace, 12 Ind. 582, it was held “ that each might punish in its own mode by its own officers the same act as an offence against each.”
In Illinois this court, in the case of Bennett v. The People, 30 Ill. 389, held that the legislature might grant to a municipal corporation the exclusive authority of regulating the sale of liquor within its limits, and that where such municipality had exercised such authority by passing restraining and regulating ordinances, a person could not be convicted under an indictment for violating the State law on that subject, but was amenable only to the ordinances.
The case of Gardner v. The People, 20 Ill. 430, was an indictment under the State law, for selling liquor without a license, and it was argued that because the legislature had conferred upon the city of Monmouth power to license, regulate and prohibit the sale of liquors in the city limits, the State law on that subject was repealed by implication. But the court held that the power conferred upon the city was not exclusive, and that the legislature did not, by merely giving the city the right to act, repeal the general law of the State on the subject; and the court expressly declined to decide whether the law and the ordinance could both be enforced by a punishment under each.
In the case of Berry v. The People, 36 Ill. 423, this court went farther, and held that where the charter of the city of Belleville conferred authority, but not exclusive authority, on the city to suppress and restrain gambling, the city ordinance passed on that subject and the State law were concurrent, and that a judgment recovered under the ordinance would bar a recovery by the State for the same cause.
But later, in the case of Fant v. The People, 45 Ill. 259, the court recedes from the position assumed in Berry v. The People, and expressly declines to decide that the jurisdiction is concurrent, and whether both the ordinance and the State law can be enforced together: “Even if the jurisdiction should be held to be concurrent, and that the exercise of the power by the city was cumulative, the State first acquired jurisdiction, and there being no pretence that plaintiff in error had been proceeded against under the city ordinance, it can therefore be no defence that he had been liable to prosecution under the ordinances. Had he been convicted under the ordinance for this offence, then a very different question would have been presented. But that question is not now before us for determination, and we deem it unnecessary to discuss it.”
The court, in that case, left the question in about the attitude in which it was placed by Gardner v. The People, 20 Ill. 434, and it can not be said that the law is settled by this court, for the fair construction of the opinion in Fant v. The People is, that a city ordinance on the same subject as a general law, both imposing penalties for the same act, neither repeals the law nor is it repugnant thereto ; but that the ordinance and the law are either separate provisions, (both capable of being enforced,) or concurrent remedies, (only one of which may be enforced,) and the court fails to determine whether they are separate or concurrent.
We think there is no doubt but that it is within the power of the legislature to create two or more offences which may be committed by a single act, each of which is punishable by itself. A conviction or acquittal in such case under either statute would be no bar to a conviction under the other, for the accused would not be twice in jeopardy for one offence, but .only once in jeopardy for each offence.
Assuming the power of the legislature to be as above stated, in what light do the two sections under consideration stand to each other ? Section 58, chapter 121, Revised Statutes of 1874, was intended to furnish to every town of the State a remedy for obstructing the highways in the town. It is a matter of importance to the town to have its highways free, from obstructions, and a damage to it and its inhabitants in case its highways are obstructed, entailing upon the town expense and inconvenience. But the town and its inhabitants are not alone interested in its highways: the people of the State are also interested in the highways, although that interest is not of a directly pecuniary character.
Can it be said that the legislature may not protect the rights of the public in the highways of the State, by punishing infringements of those rights by individuals, without repealing the remedy for the injury sustained by the town in which the act is committed? The laws, as they stand, give to the town a right of action to recover by suit a penalty or fine in the nature of compensation for an obstruction of a highway in the town,—the penalty, when collected, to be expended upon the roads and bridges in the town where the offence was committed; and for an obstruction of a highway an indictment for a nuisance may be had to punish the injury to the State and the public at large, by fine for the first offence, and for a subsequent offence by fine and imprisonment. The two laws are passed, in fact, upon different subjects and distinct injuries,—one is intended to deal with the consequences of the act upon the town, and the other with the consequences of the same act upon the State. The injury is double, and the punishment may be double. There is no repugnance or inconsistency between the two provisions, and, in our opinion, both may stand and be enforced independently and without interference with each other.
For the reasons above stated, we hold the action was properly brought under section 58 of chapter 121, Rev. Stat. of 1874, and that the motion to dismiss for want of jurisdiction was properly denied.
The exceptions to the rulings of the court in giving, refusing and modifying instructions to the jury, are not important except in two instances, which counsel for appellants lay especial stress upon,—the fifth instruction given at the request of the appellee, and the modification of the first instruction asked by the appellants.
Appellee’s fifth instruction is as follows:
“ The jury are instructed that highways may be acquired by dedication. And in this case, if the jury believe, from the evidence, that after the highway in controversy was located, defendants set their hedges back, leaving room for the highway, and removed their fence from said highway and permitted the public to use the same for a highway, these facts, if proven, may be considered by the jury in determining whether the defendants had dedicated this land to the public for a highway.”
Counsel for appellants claim that there were no facts in evidence to warrant such instruction, and that in order to constitute a dedication the evidence must show that the appellants, by some act or word, intended to make the dedication to the public.
The evidence warrants the instruction, for it shows that after the highway was established, the appellant Holmes removed his fence from the road and that he and Wragg set back their hedges to conform to the lines of the road as established, and that the road was used by the public as a highway with the knowledge of the appellants. The appellants, attempting an explanation of these acts on their part, testify that the hedges were set back in anticipation that a road might be opened at that place at some time in the future.
In order to constitute a dedication it is not essential that the intention be evidenced by words either written or spoken. If the acts of the party indicate an intention to dedicate the land to the public use, it is sufficient, and if the dedication is accepted by the public, as by use and travel, it is complete.
It is true such acts may be done without the intention to dedicate; and the mere acting so as to lead persons to the supposition that the way is dedicated, will not amount to a dedication if there be any agreement or any other circumstance which explains the transaction; but otherwise, if unexplained. Marcy v. Taylor, 19 Ill. 636.
The instruction is substantially correct and presented the law fairly to the jury.
The modification of the first instruction asked by appellants, and to which they excepted, is as follows :
“The jury are instructed, that unless they believe from the evidence that the road in question was open to the public for travel the entire length of the same within five years after the same was laid out and established, then said road is vacated and is not a public highway and can not be opened by the officers of said town of Penn after the expiration of said five years.” The court modified the instruction by striking out the words “ the entire length of the same,” and gave the instruction thus modified.
The case of Green et al. v. Green, 34 Ill. 320, holds, that unless a public highway is opened for its entire length within five years from the date of its establishment, it is vacated by operation of the statute. The evidence, by a preponderance thereof, seems to show that the road was in fact opened and traveled for its entire length within five years from the date of its establishment, June 4, 1866; but there is conflicting testimony on the point. Part of the evidence tends to show that at the point of obstruction complained of this road had never been opened to the public by the commissioners. The appellants were clearly entitled to have the law correctly given to the jury in the instructions. The instructions given by the court nowhere state the rule as laid down in Green et al. v. Green, supra, and for this reason the modification made by the court in the appellants’ first instruction was error, which entitles appellants to a new trial.
But the fences which appellant Wragg erected across the road in 1869, three years after the road was established, are not to be regarded in the same light as though they had existed at the time the road was established by the commissioners of highways. The opening of a highway for travel, under the statute, is accomplished by removing obstructions existing at the time the highway is established, and it is not essential to the opening of a highway that unlawful obstructions subsequently erected thereon should be removed. Wragg was not entitled to sixty days’ notice to remove the fences built iu 1869. They were subject to removal as an encroachment on or obstruction of a highway, at any time, by any person whose travel was interrupted by them. Marcy v. Taylor, 19 Ill. 635.
The judgment is reversed, and the cause remanded for a new trial.
Judgment reversed.