State ex rel. Wood v. Schweickardt

Decision Date22 February 1892
Citation19 S.W. 47,109 Mo. 496
PartiesThe State ex rel. Wood, Attorney General, Appellant, v. Schweickardt et al
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Gibson Bond & Gibson for appellant.

(1) The city of St. Louis holds Forest Park for the beneficial enjoyment of the entire body of its citizens and the public and any diversion to other than legitimate park purposes is illegal. Session Acts of 1874, p. 371; St. Louis Co. v. Griswold, 58 Mo. 175; Rutherford v. Taylor, 38 Mo. 315; Price v. Thompson, 48 Mo. 361; Cummings v. City, 90 Mo. 259; 2 Dillon on Municipal Corporations [4 Ed.] secs. 914-922; Glasgow v. City, 87 Mo. 678. (2) The liquor business has repeatedly been referred to in judicial decisions as detrimental to public morals. Austin v. State, 10 Mo. 591; State ex rel. v. Hudson, 78 Mo. 302; State ex rel. v. Pond, 93 Mo. 623; Schmidt v. State, 14 Mo. 137; City v. Fitz, 53 Mo. 585; State v. Searcy, 20 Mo. 489; Mugler v. Kansas City, U. S. S.Ct. (3) By an act of the general assembly, approved March 29, 1875, the sale of liquor is forbidden within Forest Park. Session Acts of 1875, p. 417. (4) An ordinance that violates the spirit and true intent of a legislative enactment is void. 1 Dillon on Municipal Corporations [4 Ed.] sec. 329. (5) The judiciary may pass on the validity of ordinances, and set them aside if unreasonable. Railroad v. City, 85 Mo. 674; Kelly v. Meeks, 87 Mo. 401; Corrigan v. Gage, 68 Mo. 545; 1 Dillon on Municipal Corporations [4 Ed.] secs. 319, 327. (6) Ordinance void, as contravening section 4, article 8, of the city charter. (7) Corporate power must clearly be given by the charter, and the doubt, if it exists, must be resolved against the corporation. Douglass v. Mayer, 18 Cal. 647; Wallace v. Mayer, 29 Cal. 188; City v. Cox, 5 Ind. 38; Cooley on Constitutional Limitations [6 Ed.] p. 47. (8) Ordinance void as an attempt to barter away the police power of the city. State v. Troll, 78 Mo. 303; Butchers' Union v. Crescent Co., 111 U.S. 750. (9) Ordinance void as being an attempt to grant a monopoly; hence, contrary to the constitution of the state. State Constitution, art. 4, sec. 53, and art. 2, sec. 15. (10) A corporation possesses only those powers granted in its charter expressly or by necessary implication. City v. Tel. Co., 96 Mo. 628; Merrill v. Monticello, U. S. Supt. Ct; 1 Dillon on Municipal Corporations [4 Ed.] sec. 457. (11) There exists no provision in the charter of the city of St. Louis conferring upon it the right of granting an exclusive privilege or monopoly. (12) This action properly brought in the name of the attorney general. State v. County Court, 51 Mo. 350; Matthews v. Town, 62 Mo. 504; Cummings v. City, 90 Mo. 259; State v. Hagar, 91 Mo. 455; Railroad cases, 35 Wis. 425.

W. C. Marshall, for City of St. Louis, respondent.

(1) Under the act of 1874 the commissioners had the power to control the use of Forest Park. (2) The power of the commissioners is now fully vested in the city of St. Louis, under section 20 of article 9 of the constitution of Missouri. (3) Under section 1, article 1, of the charter, the city has the power to lease any property for the benefit of the city. (4) The mayor and assembly have the power, by ordinance, to regulate all parks and public grounds. City Charter, art. 3, sec. 26, par. 3, And that the power to regulate, as defined by the supreme court of the United States, in the case of Gibbons v. Ogden, 9 Wheat. loc. cit. 196, means: "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the constitution." This case was cited, adopted and followed by the supreme court of Missouri in the case of State ex rel. v. Thomas, in construing the eighth paragraph of this same section (art. 3, sec. 26), which says the "mayor and assembly shall have power * * * to regulate and provide for the election or appointment of city officers required by this charter," etc. (5) A park is "purely a matter of local, as distinguished from state, concern, and it is beyond legislative competency to coerce a municipal corporation to contract a debt for local purposes without its consent." People ex rel. v. Common Council, 28 Mich. 228; Dillon on Municipal Corporations [4 Ed.] sec. 72, p. 123, note 1; Detroit v. Road Co., 43 Mich. 140; Mayor v. Commissioners, 44 Mich. 602: Fund Society v. Philadelphia, 31 Pa. St. 183. (6) Provisions for local conveniences for the citizens, like water, light, public grounds for recreation, and the like, are manifestly matters which are not provided for by municipal corporations in their political or governmental capacity, but in that quasi private capacity in which they act for the benefit of their corporations exclusively. Cooley on Taxation [2 Ed.] 688; Philadelphia v. Fox, 64 Pa. St. 169, referred to in 1 Dillon on Municipal Corporations [4 Ed.] sec. 74a, p. 126; Railroad v. City, 77 Ill. 505; People v. Chicago, 51 Ill. 17; People v. Solomon, 51 Ill. 37; Harard v. Drainage Co., 51 Ill. 130. (7) Ordinance 16002, leasing the cottage and outbuildings to defendant Schweickardt and regulating and providing what use they shall be put to, is clearly valid. (8) That ordinance 16002 is not in conflict with, or affected by, the act of March 29, 1875 (Acts, 1875, p. 417), or any law of the state of Missouri or ordinance of the city of St. Louis relating to establishing, opening, conducting or licensing saloons or dramshops within a given distance of Forest Park. (9) Ordinance 16002 is a matter of purely local concern, and does not belong to the political or governmental supervision of the state over the municipality of St. Louis.

Sherwood, P. J. Black, J., concurs in all that is said. Brace, J., in all but paragraph 5; Barclay, J., absent.

OPINION

Sherwood, P. J.

The relator, by this proceeding, prays for an injunction against the defendants, enjoining and restraining them from selling whiskey, wine, liquor or any kind of intoxicating refreshments, in Forest Park; from carrying out the terms and provisions of ordinance number 16002; for a decree declaring said ordinance and the contract made thereunder null and void; for tearing down the cottage, built pursuant to the contract; for the ejection of defendant Schweickardt, and for other and further relief. This petition the defendant city answered, setting up certain constitutional, statutory, charter and ordinance provisions, as justifying her course, and denying the general charges of the petition. Schweickardt, the codefendant, subsequently joined in this answer. Upon a full hearing of the cause, the circuit court dismissed the petition; hence, this appeal.

Ordinance number 16,002, upon which the contract made thereunder this litigation is chiefly bottomed, is as follows: "16002. An ordinance to lease to Charles Schweickardt the cottage, outbuildings and refreshment privileges in Forest Park. Be it ordained by the municipal assembly of the city of St. Louis as follows:

"Sec 1. The board of public improvements is hereby authorized and directed to enter into a contract in writing with Charles Schweickardt, for the exclusive privilege of selling refreshments in Forest Park, for a period of ten years from the first day of April, 1891, for the annual rental of $ 1,000 payable monthly in advance, on the terms and conditions herein contained, and this ordinance shall be set out in said contract.

"Sec. 2. Said lessee shall erect a restaurant building to cost not less than $ 15,000, upon plans to be approved, and in a place designated by the board of public improvements; and at the expiration or other termination of said contract said building shall become the property of the city of St. Louis, without compensation. The lessee may also erect and maintain, not to exceed three, ornamental refreshments stands, upon plans and in places designated by the park commissioner.

"Sec. 3. No public bar shall be maintained within the limits of said park, but all liquors or refreshments shall be served by competent waiters to persons seated at tables to be furnished by said lessee, and no liquors or refreshments shall be furnished or sold in any other way, and no liquors shall be served except at said restaurant building. The premises of the lessee shall be open to the inspection of the park commissioner, and shall be maintained in a neat and orderly manner, and the buildings kept in good repair, and the orders and directions of the park commissioner in the above matters shall be obeyed and observed.

"Sec. 4. In the event that the said lessee shall keep said restaurant in a disorderly manner, or shall fail for thirty days to pay any monthly rental, or shall sell intoxicating liquors to either minors or intoxicated persons, or shall sell or furnish liquors or refreshments otherwise than as stipulated in section 3, or fail to complete the restaurant building within the specified time, then said lessee shall forfeit to the city of St. Louis, as liquidated damages, the sum of $ 50 for every day either of said acts shall be committed. Whenever said penalties shall reach the sum of $ 1,000, said lease and this ordinance shall become null and void, and all the buildings and improvements erected and made by said lessee shall be forfeited to the city of St. Louis, and a resolution of the municipal assembly, approved by the mayor, on the above matters or any of them, shall be binding and conclusive on the lessee and his sureties.

"Sec 5. The said lessee shall not sell or transfer the rights and privileges granted by this...

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