People v. Buchanan , 1 Idaho 681 ( 1878 )

Hollistee, 0. J.

I concur in the judgment of the court, but in some of the views expressed by the majority as to the construction of the act of the legislature passed January 12, 1877, entitled, “An act relating to houses of ill-fame in Boise city,” I find myself unable to agree with the majority. In my dissenting opinion in the case of Ah Ho v. The People etc., decided at the present term, I have gone pretty fully over the grounds, upon which I differ with the majority in this case, and I do not deem it necessary to repeat what I have already said.

It is sufficient for my present purpose to say, that until the corporation of Boise city have done some act under the power conferred by section 1 of the act referred to, which is inconsistent with the common law, the latter is not repealed. If they, as is claimed, have passed an ordinance suppressing bawdy-houses within the city limits, and prescribed a punishment for its violation, or should they hereafter do so, still the common law is in force, and a person may be punished as at common law, and also under the ordinance. The act is not limited in its operation in any portion of the city until such limitation is fixed by a by-law making bawdy-houses lawful within the city, or some portions thereof. If the corporation shall fix the location where such houses may be kept, in such portions, the statute becomes inoperative, but only to that extent; but when the by-law does no more than does the com on law in relation to the subject, it is to be considered only as an affirmance of the latter, and the remedy given by the by-law merely cumulative. See authorities quoted in my dissenting opinion referred to above.