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mating what his judgment would be, has not yet pronounced the same. This judgment under the ordinance may include both fine and imprisonment. A forfeiture of petitioner's license to sell liquors, and of the money paid therefor, also follows this second conviction.

While there is contrariety of expression among the English decisions concerning the writ of prohibition and its uses, the weight of authority in England probably sustains the positions urged upon us by counsel for petitioner, viz.: That this writ is a writ of right, and that when one of the recog nized grounds appears, a superior court must issue the same notwithstanding adequate relief might ultimately be obtained by appeal or by some other remedy. Shortt on Mandamus, Quo Warranto and Prohibition, 439, et seq. But the American cases fully authorize the conclusions reached by Mr. High in his work on Extraordinary Legal Remedies, that the writ is not granted ex debito justitiæ, but rests in the sound discretion of the court (sec. 765); also, that it should be made use of only when the ordinary forms of relief are insufficient, and never if the complaining party has another adequate remedy at law (secs. 770, 771). The latter practice has been adopted by this court, and the subject may fairly be treated as stare decisis in this state. Leonard v. Bartels, 4 Colo. 95.

But neither in England nor in America is this proceeding allowed to supersede the ordinary functions of an appeal or writ of error; the only inquiry permitted being whether the inferior tribunal is exercising a jurisdiction it does not possess, or having jurisdiction over the subject-matter has exceeded its legitimate powers. High, sec. 781.

The jurisdictional challenge in the case at bar is made upon two grounds: first, that the legislative act under-which the police court of Denver exists is unconstitutional, and therefore that respondent Sopris is illegally attempting to exercise judicial power; second, that the ordinance relating to Sunday closing is invalid, and the procedure provided for the police magistrate illegal, hence even if the court be law

fully constituted, it is exercising a jurisdiction for which there is no warrant of law.

While these questions might be reconsidered upon a trial de novo in the county court, and likewise by this court upon writ of error to the county court, in view of the fact that besides an illegal forfeiture an illegal imprisonment might in the meantime be suffered, we are not prepared to say that the remedies thus provided are adequate. We conclude that, under all the circumstances, our discretionary power in the premises should be favorably exercised, and will proceed to consider the questions of jurisdiction presented.

The act to which the police court of Denver owes its existence is found in the Session Laws of 1885, p. 290. Sec. 1 of this act declares that: "In all cities in this state containing a population of twenty-five thousand or more inhabitants, whether organized under a special charter or a general act there are hereby created and established certain courts, to be called police magistrates' courts." We cannot concede the correctness of counsel's contention that the legislature in this provision attempted to evade a constitutional mandate by creating a special court for a particular city under the disguise of a general law. It may be true, as asserted in argument, that Denver was the only city then having twenty-five thousand inhabitants; but the language employed tends to negative the idea that the act was passed solely with reference to Denver. For it provides for "courts" not a court, and refers to "all cities" of the requisite size "whether organized under a special charter or a general act," etc. It is perhaps a little unfortunate that the police courts are spoken of as "hereby created and established." But these words must be construed in the light of sec. 26, art. 6 of the constitution, which deals exclusively with the subject of police courts, and simply authorizes the legislature “to provide for creating" them. In view of this constitutional provision, and in accordance with recognized rules of construction, we conclude that the legislative intent was to provide for the establishment of police courts in cities that might VOL. XVII.-20

thereafter attain the requisite population, as well as in those which were then sufficiently large.

Nor is the act obnoxious, as claimed, to secs. 25, art. 5 and 28, art. 6 of the constitution. True it is that the legislature has provided for three classes of police courts, differing somewhat from each other in their organization. But since the statutes referred to apply to all cities or towns in the respective classes designated thereby, they cannot be regarded as local or special laws. And nothing more need be said of this objection in so far as section 25 is concerned.

There may be doubt as to whether sec. 28, art. 6 of the constitution was intended to cover police courts. But if we assume that these courts are included, it is certain that they may be divided into different classes or grades. Sec. 26 of the same article directs the legislature, as we have already seen, to "provide for the creation" of "such" police courts "for cities and towns as may be deemed from time to time necessary or expedient," with jurisdiction over all violations of ordinances in the different cities and towns "respectively." The peculiar phraseology thus employed indicates clearly that the constitutional convention had in mind the consideration which is emphasized by another constitutional provision (sec. 13, art. 14), that cities and towns must of necessity be divided into different classes, organized in a different way, and clothed with somewhat different governmental powers and authority. The palpable fact that a police court adapted to the wants of a city of two thousand inhabitants might be utterly insufficient for a city of twenty-five or fifty thousand people, is here recognized by the framers of the constitution. This provision sanctions police courts differing somewhat in organization and procedure for different classes of cities and towns.

As already observed, each of the statutes relating to these courts applies alike to all cities or towns of the particular size or class therein designated. And so far as the present constitutional objections are concerned, we shall hold that

the police court challenged in this case is legally established. Rogers v. The People, 9 Colo. 450.

We encounter greater difficulty in disposing of the remaining general objection urged by counsel for petitioner, viz.: That the ordinances through which petitioner's conviction took place are invalid, and therefore the police court is proceeding illegally.

Great reliance is placed upon the proposition that since by general statute the act with which petitioner is charged is made a misdemeanor punishable by indictment or information, trial by jury, etc., the ordinances involved are obnoxious to a number of constitutional provisions touching criminal cases.

The legislature may undoubtedly delegate to municipal corporations power to adopt and enforce by-laws or ordinances on matters of special local importance, even though general statutes exist relating to the same subjects. An ordinance must be authorized and must not be repugnant to a statute in force over the same territorial area; but if there be no other conflict between the provisions of the statute and ordinance save that they deal with the same subject, both may be given effect. The resulting or correlative doctrine is now too firmly established to admit of serious question that the same act may constitute two offenses, viz., a crime against the public law of the state, and also a petty offense against a local municipal regulation. The weight of authority likewise fairly sustains the view that a prosecution and punishment for one of these offenses is no bar to a proceeding for the other. Though,. if it be not so provided by statute, every fair-minded judge will, when pronouncing judgment in the second prosecution or proceeding, consider a penalty already suffered. Since the act constitutes two distinct offenses against separate jurisdictions, it is analogous to those cases where the same act is punishable under a congressional statute, and also under a state law. The offenses being different, there is no violation of the constitutional inhibition against putting one twice in jeopardy for the same offense.

These views have already in substance been sanctioned by this court. Hughes v. The People, 8 Colo. 536; and they are sustained by the following, among other authorities: Cooley's Const. Lim. (5th. ed.) 241, 242, and note 1; Dillon, Mun. Corp., secs, 367, 368 and note 1; Bishop, Stat. Crimes, sec. 23; Wharton's Crim. Pl. & Pr., sec. 440; State v. Lee, 29 Minn. 453; Waldo v. Wallace, 12 Ind. 569; State v. Topeka, 36 Kans. 76; Greenwood v. The State, 6 Bax. 567; Howe v. Treasurer, 37 N. J. Law, 145; Mayor, etc. v. Allaire, 14 Ala. 400; Hamilton v. State, 3 Tex. Ap. 643; Shafer v. Mumma, 17 Md. 331; State v. Sly, 4 Oregon, 277; Johnson v. State, 59 Miss. 543; Wragg v. Penn Township, 94 Ills. 11; McLaughlin v. Stephens, 2 Cranch (C. C.) 148; City v. Cafferata, 24 Mo. 96; Rogers v. Jones, 1 Wend. 238; Cross v. North Carolina, 132 U. S. 131.

But we are told that admitting that the same act may be an offense against each of two different sovereignties or laws, and that the act or may be punished for each of the offenses, it does not follow that the procedure may be different. And it is confidently asserted that summary proceedings without a jury in cases like the present cannot be constitutionally sustained.

This court has already adopted the view that in prosecutions for the violation of a municipal ordinance, where the offensive act is not also a misdemeanor by general statute, the constitutional provisions relating to indictments and trial by jury in criminal cases, do not apply. And the fact that imprisonment in the first instance may be a part of the penalty does not affect the conclusion. City of Greeley v. Hamman, 12 Colo. 94. But the opinion in that case expressly disclaims any intimation as to the result when "the offense mentioned in the ordinance is also covered by a public criminal statute." See also, Durango v. Reinsberg, 16 Colo. 327. The precise question now submitted is therefore one of first impression here.

There is excellent authority for the proposition that an ordinance providing for summary proceedings without a jury

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