dissenting.
I respectfully dissent for the following reasons:
1. On the record before this court, the trial court’s conclusion that the City’s prosecution of Howard for public nuisance is barred should not be overturned. The trial court found “defendant’s conduct in 1982 represented a continuing and uninterrupted course of conduct, and an indivisible state of mind, which could have resulted in both zoning and nuisance charges at that time.” The record before this court does not establish the trial court’s finding was clearly erroneous. See Minn.R.Civ.P. 52.01.
The City may not, therefore, bring multiple prosecutions for respondent’s uninterrupted course of conduct. Minn.Stat. § 609.035 (1982); see State v. Johnson, 273 Minn. 394, 141 N.W.2d 517 (1966).
This choice was made by the prosecution. * * * [I]f the prosecution has a problem in this case, it was of its own making. We made it clear in State v. Reiland, that if the state wishes to charge a defendant with more than one offense * * it should be done in one prosecution in district court stating each offense as a separate count.
State v. Krech, 312 Minn. 461, 252 N.W.2d 269, 274 (1977) (citation omitted). The city is barred from prosecuting respondent for public nuisance by Minn.Stat. § 609.035 (Supp.1983).
2. The trial court properly dismissed the City’s public nuisance charge under Minn. Stat. § 609.035, which provides:
[I]f a person’s conduct constitutes more than one offense under the laws of this state, he may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Id. (emphasis added).
The protection of Minn.Stat. § 609.035 applies to all criminal prosecutions including municipal ordinance violations. State v. White, 300 Minn. 99, 102-03, 219 N.W.2d 89, 91 (1974).
In State v. Zuehlke, 320 N.W.2d 79 (Minn.1982), the Minnesota Supreme Court said:
The approach which we have followed under section 609.035 in determining whether nonintentional crimes * * * were part of the same course of conduct is to analyze the facts and determine whether the offenses “[Arose] out of a continuing and uninterrupted course of conduct, manifesting an indivisible state of mind or coincident errors of judgment.” The approach used in determining whether two or more intentional crimes were part of the same course of conduct is to focus on the factors of time and place and also to consider whether *643the segment of conduct involved was motivated by an effort to obtain a single criminal objective.
Id. at 81-82 (emphasis added; citations omitted).
The trial court ruled Howard’s conduct in running the game farm represented a continuing and uninterrupted course of conduct and indivisible state of mind. This being so, Minn.Stat. § 609.085 (Supp.1983) bars Howard’s prosecution for public nuisance.
3.The City’s wild animal ordinance operates as a bill of attainder and as an ex post facto law. The United States Constitution provides:
No State shall * * * pass any Bill of Attainder [or] ex post facto Law '* * *.
U.S. Const, art. 1, § 10; see Minn. Const, art. 1, § 11.
“A bill of attainder is a legislative act which inflicts punishment without a judicial trial.” Starkweather v. Blair, 245 Minn. 371, 377, 71 N.W.2d 869, 874 (1955) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356 (1867)). “A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” Fletcher v. Peck, 10 U.S. 87, 138, 6 Cranch 87, 138, 3 L.Ed. 162 (1810). The imposition of criminal liability may operate as a bill of attainder. United States v. Brown, 381 U.S. 437, 450, 85 S.Ct. 1707, 1715, 14 L.Ed.2d 484 (1965).
The bill of attainder clause should be interpreted giving it effect and protecting constitutional rights. See id. 381 U.S. at 442-43, 447, 85 S.Ct. at 1711-12, 1714.
[T]he Bill of Attainder Clause [is] not to be given a narrow historical reading * *, but [is] instead to be read in light of the evil the Framers had sought to bar: legislative punishment of any form or severity, of specifically designated persons or groups.
Id. at 447, 85 S.Ct. at 1714.
Here, the City has penalized respondent with criminal liability in an attempt to deprive him of his legitimate game farm business. This act of the City, admittedly and intentionally singling out respondent, is a bill of attainder and ex post facto in effect.
4. The wild animal ordinance also operates as an ex post facto law in this matter. “An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.” Starkweather, 245 Minn, at 386, 71 N.W.2d at 879.
Much of what has already been said applies equally to a determination of whether the act involved is an ex post facto law. Bills of attainder historically often involve ex post facto laws and it probably was for that reason that they were dealt with together in framing our constitution.
Id.
The record in this matter is absolutely clear that the City enacted, this ordinance for punitive purposes. The expressed purpose of singling out respondent for the purpose of destroying his business distinguishes this matter from Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568 (1925) and the other cases cited by appellants. In those matters, the laws in question were directed at groups of persons and did not single out a particular person for punishment. Moreover, the laws in those cases do not present situations where a. legislative body attempted to adopt criminal statutes in an attempt to expand its land use controls beyond prescribed limits. The Plymouth wild animal ordinance is an ex post facto law because it would punish respondent for lawfully establishing a game farm prior to the adoption of the ordinance.
5. Here the City is attempting to legislate a lawfully commenced business out of existence. Respondent’s game farm is a lawful nonconforming use established before the 1982 zoning ordinance was adopted. The nonconforming use has not been improperly expanded. Howard’s conduct in operating the game farm represents a continuing and uninterrupted course of conduct and indivisible state of mind. The fact that some animals, which were babies at the time of the 1982 complaint, are now *644grown is immaterial. This was an expected and proper part of the game farm operation. Matters outside the record and raised at oral argument should be ignored. They may be the subject of other appropriate proceedings, not this one.
6. The City of Plymouth may not enforce a criminal statute enacted for the specific purpose of destroying respondent’s legitimate business. The City of Plymouth has attempted to avoid the clear requirements of the fifth and fourteenth amendments to the United States Constitution and avoid the expense of eminent domain proceedings by enacting this punitive law which deprives respondent of his game farm business.
Private property may not be taken for public use “without just compensation.” U.S. Const, amend. V. The Minnesota Supreme Court has made clear on numerous occasions:
A residential zoning ordinance may constitutionally prohibit the creation of uses which are nonconforming, but existing nonconforming uses must either be permitted to remain or eliminated by use of eminent domain.
County of Freeborn v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972); see Hawkins v. Talbot, 248 Minn. 549, 551, 80 N.W.2d 863, 865 (1957). “Absent a court determination that the [business] is a public nuisance or a nuisance per se, a city simply cannot legislate a business out of existence.” Apply Valley Red-E-Mix v. City of St. Louis Park, 359 N.W.2d 313, 315 (Minn.Ct.App.1984).
7. I would affirm the trial court.