I fully concur in the opinion of my associate brother Berry, that the precise question raised by the demurrer to the second plea of the defendant in this action was. presented to this court, and authoritatively and correctly decided, in State v. Charles, 16 Minn. 474; and that, in following the adjudication in that case, the demurrer to this plea must be sustained.
The question raised by the demurrer to the defendant’s third plea is whether the latter is good as a plea of a former-conviction for the same offence as that charged in the indictment herein. The plea is as follows: “That she (the defendant) has already been duly convicted and punished, under the charter and ordinances of the said city of St. Paul, of and for the said offence of keeping a house of ill-fame, resorted to for the purpose of prostitution, committed at said city of St. Paul, and in said county of Eamsey, on the first day of January, A. D. 1879, and on divers other days and times between that day and the day of the date of this indictment, and has paid the penalty and suffered the punishment therefor, in accordance with the provisions of the charter and ordinances of said city, referred to in her second plea, which said conviction is the same offence and same specific acts of offence as regards all matters and things in the said indictment charged; wuich said conviction and punishment was had by the judgment of the municipal court of the said city of St. Paul, rendered at the said city of St. Paul, on the 19th day of April, 1879.”
In construing this plea, regard should be had to the familiar *513rule that nothing contained in a pleading is to be taken as admitted by a demurrer, except such facts as are material and well pleaded. The averment of due conviction is but a legal conclusion drawn by the pleader from the facts stated, and is not admitted. ' '
The former conviction which is pleaded, is stated to have been under the charter and ordinances of the city of St. Paul, and by the municipal court of that city’. Unless it was within the jurisdiction of that court, and the provisions of some ordinance authorized by the charter, of course it was null and void. Outside the allegations of the plea, the court can take no judicial notice of the particular terms and provisions of the ordinances therein referred to. City of Winona v. Burke, 23 Minn. 254. But, whatever their character, it is clear they can have no legal validity except as authorized by-the charter of the city, in pursuance of which they were adopted.
The charter of the city of St. Paul does not attempt to confer upon its common council any authority "to pass ordinances in respect to any offences, amounting to felonies, which may be committed against the state, in violation of its laws, nor for the trial, conviction and punishment of persons guilty of such offences. The power which it gives, by express and specific grant, “to enact ordinances” for the purposes therein named, all of which are municipal, “to suppress houses of ill-fame” within the city, and to provide, for the arrest and punishment of the keepers thereof, by a fine not exeeeding $100, and imprisonment in the city or county jail not exceeding 30 days, (Sp. Laws 1868, p. 70, subd. 3; p. 75, subd. 35,) confers no authority to provide for the punishment of any offence committed against the state by the keeping of any such house in violation of its laws; and any ordinance enacted with that view, and of that character, would be a nullity, and a conviction thereunder void. And yet this must have been the character of the ordinance under which the alleged former conviction was had, if it is conceded that it was for the same offence charged in the indictment, for *514that clearly charges an offence committed “against the peace and dignity of the' state, and contrary to the form of the statute,” and not in violation of any ordinance.
Furthermore, as the offehee alleged in the indictment is a felony under the laws of the state, (Gen. St. 1878, c. 91, § 2; c. 100, § 9,) a former conviction for the same offence, by the municipal court of the city of St. Paul, would be of no effect whatever, and could not subject the defendant to any penalty or punishment, inasmuch as that court was wholly without jurisdiction to pronounce any judgment concerning an offence of that character. It was only triable upon indictment properly found by a grand jury, and by a court of competent jurisdiction to try indictments. The municipal court is invested with no such jurisdiction. The plea is, therefore, clearly bad so far as it attempts to set up a former conviction and punishment for the same offence; It is suggested, however, that the plea may be sustained, for the reason that it sufficiently alleges that the former conviction and punishment, under the ordinance, was for the same specific act of offence charged in the indictment; and this, perhaps, raises the question both as to the validity of the ordinance, and the effect of a conviction thereunder as a bar to any prosecution by indictment founded upon the same act.
The statute upon this subject, and upon which the indictment is based, enacts that “whoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness, shall be punished by imprisonment in the state prison not more than one year nor less than six months, or by fine not exceeding three hundred dollars nor less than one hundred dollars.” Assuming that the ordinance under which the alleged former conviction was had, in terms prohibited the keeping of any such house within the city, under a penalty for its violation not in excess of that prescribed by the charter, it was not in my opinion unauthorized or invalid. Keeping a house of this character,' which the statute denounces as a felony, without reference to the place of its location, was an offence *515at common law, because of its evil influence and effect upon the public morals. Keeping it in a crowded and populous city, where its pernicious influence is ever present and constantly felt, is a circumstance greatly in aggravation of the evil as respects that community. A breeding-place of vice and crime, it is a continual menace to the orderly government ■of the city, creating, in the affrays and mischiefs it causes, a necessity for increased taxation for the preservation of its peace and quiet. These are special evils, that directly and specially affect the city as a municipal government, which are not provided for by the statute, as they do not affect the state at large, or at most only remotely, and in a much less degree. Their suppression is essential to the welfare of the municipality, and to enable it to- accomplish the purposes of its creation; and any ordinance directed to these ends, and not to the punishment of the offence against the state, would be an exercise of corporate authority for a strictly municipal purpose. The competency of the state, through its legislature, to confer such authority, without at the same time surrendering any of its jurisdiction over the offence against it, I cannot doubt. It would come within the principle of the rule announced by Mr. Dillon, in his work on municipal corporations, that “where the act is, in its nature, one which constitutes two offences, one against the state, and one against the municipal government, the latter may be constitutionally authorized to punish it’, though it be also an offence under the state law; but the legislative intention,” says this learned author, “that this may be done, should be manifest and unmistakable, or the power in the corporation should be held not to exist.” Dillon, Mun. Corp. § 302. I fully agree with this learned author as to the correctness of this rule, which, it seems to me, governs this case in respect to the point under consideration.
The legislative intention in this case has been exjjressed too clearly to admit of any doubt. The charter gives, in express terms, the authority, by ordinance, “to suppress houses *516of ill-fame” within the city, and “to provide for the arrest and punishment of the keepers thereof,” by “a fine not exceeding one hundred dollars, and imprisonment in the city prison or county jail not exceeding thirty days, or both, and to be fed on bread and water, in the discretion of the city justice.” Sp. Laws 1868, p. 70, subd. 3; p. 75, subd. 35. It is given as a specific grant of power, after a general authority, already conferred, to enact all ordinances deemed exjiedient, and not repugnant to the constitution and laws of the United States and of the state, for certain purposes therein named, of a municipal character solely and exclusively; and it is expressly declared that such specific power is given for the like general purposes, thus excluding any inference that it can be used for the prosecution and punishment of offences against the state, or for any other than strictly municipal purposes. According to a familiar rule, a grant of authority thus specifically enumerated must be taken as within the intention of the legislature, and as not embraced by the proviso as to repugnancy. On the contrary, it is a plain declaration by the legislature that its exercise by the corporate authorities, for municipal purposes alone, was contemplated and intended, and that such its exercise would not be in conflict with the statute then in force, making the act of keeping a house of ill-fame a felony, and providing for its punishment as such, under the laws of the state. That this was the legislative intention is further, evidenced by the fact that, in 1878, express authority was given to the common council of said city to appropriate and set apart, in whole' or in part, all fines collected in the exercise of the power from the keepers of houses of ill-fame in said city, for the use and support of institutions established therein for the care and reformation of fallen women. Sp. Laws 1878, c. 143.
As to the question of repugnancy between the statute and the supposed ordinance, the former looks to the maintenance of the “peace and dignity of the state,” by the punishment of an unlawful act, offensive to public morality,, and criminal wherever committed, without reference to the particular inter*517ests of any locality; tbe latter, to tbe preservation of the morals of a particular community, and to its protection against the local evils and mischiefs resulting to it from the commission of ■such wrongful act in its midst; to which ends alone both the prohibition and the punishment provided by tbe ordinance are directed, without any reference to the criminal character of the act as a public offence. They are not inconsistent with each •o'.her, and, within the principle of State v. Ludwig, 21 Minn. 202, there is no repugnancy between them, as would clearly have been the ease if the ordinance had merely attempted to regulate what the statute absolutely prohibits.
The remaining question respects the liability of defendant to punishment, both under the ordinance and the statute, both being in force, and it being conceded that the act which ■constitutes the offence, or out of which it arose, is the same in each ease. It is objected that a conviction and punishment under both would work the infliction of a double punishment for the same act, and that this is prohibited by the constitutional guaranty that “no person for the same offence shall be put twice in jeopardy of punishment.” Const, art. 1, § 7. The term “offence,” in criminal law, is not identical in meaning with the word “act.” It imports, in its legal sense, an infraction or transgression of a law — the wilful doing of an act which is forbidden by a law, or omitting to do what it commands. 1 Wharton Cr. Law, § 1; 2 Bouvier Law Dict. 254; Moore v. State of Illinois, 14 How. 13.
The identity of an offence, therefore, is to be determined by a reference both to the act done, and the law which it violates ; and if the act itself is a transgression of the two distinct laws, it results in two offences. The case above cited, (Moore v. State of Illinois,) and that of Fox v. State of Ohio, 5 How. 410, 435, furnish illustrations of the truth of this proposition, and establish the doctrine that a single act done by a party •owing allegiance both to the government of the United States and the government of a state, in violation of the laws of both, constitutes two distinct offences, and subjects him to *518the liability of a conviction and punishment under both. This doctrine is fully approved by that court in United States v. Marigold, 9 How. 560, 569; United States v. Cruikshank, 92 U. S. 542, 550; and in the recent case of Ex parte Siebold, 100 U. S. 371.
The principle of these decisions, says Mr. Cooley, applies to the violation, by one and the same act, of a state law and a valid municipal ordinance. That principle is this: that every government competent to the enactment of a law with a iienalty for its infraction, which shall be obligatory upon those subject to its jurisdiction, may punish any violation thereof, though the offender may also have been subjected to punishment, under another jurisdiction, for an infraction of its laws by the same act. Within the limits of its authority to enact ordinances with the force of law, for the government of its citizens, a municipal corporation is a government, and, if the statute creating it so permits, it may, through its own separate tribunals, exercise the powers of a government in respect to all offences committed against it.
Mr. Cooley, in speaking upon this subject, says: “The same act may constitute an offence against both the state and the municipal corporation, and may be punished under both, without the violation of any constitutional principle.” And this doctrine, he also says, is sustained by the clear weight of authority. Cooley’s Const. Lim. 199, and note 4.
Mr. Bishop expressess concurrence with these views in these words: “The true doctrine appears to stand 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.” And he regards the doctrine as analagous to that which obtains in respect to an act done in violation of the laws both of the United States and of a state, which, he says, “may now be deemed settled.” Bishop on Stat. Crimes, § 23.
■ If these views are correct, as they are believed to be, the *519constitutional guaranty invoked by the defendant has no application to the facts of this case. Her conviction and punishment, under the ordinance, was for an offence against the city which it was legally authorized to punish. She now stands indicted for an offence committed against the state, by a violation of its. laws. The two are separate and distinct offences, and, if guilty, she is liable to punishment for both.
In my opinion, the demurrer to the third plea ought to have been sustained, and the order of the court below overruling it should be reversed.