State ex rel. Wood v. Schweickardt
Decision Date | 22 February 1892 |
Citation | 19 S.W. 47,109 Mo. 496 |
Parties | The State ex rel. Wood, Attorney General, Appellant, v. Schweickardt et al |
Court | Missouri 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: 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.
Brace, J., in all but paragraph 5; Barclay, J., absent.
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:
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