The City of St. Louis v. Howard

• Citation: 24 S.W. 770,119 Mo. 41
• Parties: The City of St. Louis, v. Howard, Appellant
• Decision Date: 23 December 1893
• Court: United States State Supreme Court of Missouri

24 S.W. 770

119 Mo. 41

The City of St. Louis, v. Howard, Appellant

Supreme Court of Missouri, Second Division

December 23, 1893

Appeal from St. Louis Court of Criminal Correction. Hon. J. R Claiborne, Judge.

This proceeding against defendant is bottomed on his alleged violation of section 373, article 8, chapter 14, Revised Ordinances, 1887, p. 583.

Defendant was brought before the second district police court to answer in an action of debt in the sum of $ 25 for having on the twentieth day of July, 1891, etc., carried on a slaughterhouse within the distance of three hundred feet of certain dwelling houses, etc.

On trial before the police court, defendant was found guilty as charged, and he appealed to the court of criminal correction. When that court was reached, his motion to quash the information filed against him was denied; the grounds of the motion being that the ordinance in question is "unconstitutional, illegal and void because the same is unreasonable; because it is an attempt to delegate legislative power, and because said ordinance is not within the legislative powers of the city of St. Louis by its charter."

Thereupon evidence was adduced, and upon that, defendant was again found guilty as charged, his fine again assessed at $ 25, and he has appealed to this court.

Reversed.

T. J Rowe for appellant.

(1) The ordinance, section 373, fixes no limit to the punishment that may be inflicted on the defendant. The fine is fixed at not less than $ 25 per day, which is exorbitant and unreasonable. There should be both a minimum and a maximum fine. A by-law or ordinance which fails to fix the amount of the fine within certain limits is unreasonable on its face and therefore void. 1 Dillon, Munic. Corp. sec. 341; State v Zeigler, 32 N. J. L. 262; State v. Crenshaw, 94 N.C. 877; Cooley's Const. Lim. 243-245; Mayor v. Phelps, 27 Ala. 55; State v. Rice, 97 N.C. 421. (2) The ordinance under consideration violates the requirements of good municipal law, viz: that it should be reasonable and should not delegate legislative power as clearly shown by the able opinion delivered by Thompson, Judge, in 16 Mo.App. 147-149. (3) A law cannot be a valid and constitutional law which makes an act illegal when done by one man and legal when done by another in same locality, at same time, and under like circumstances. St. Louis v. Weber, 44 Mo. 547; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220. (4) Section 373 is illegal in that it declares that the owner of a slaughterhouse shall not lawfully use his building without the written consent of the owner of the dwelling. The city cannot so abdicate its corporate functions. Flint v. Russell, 5 Dill. 151; Ruggles v. Collier, 43 Mo. 353; City v. Clemens, 43 Mo. 395; City v. Clemens, 52 Mo. 133; Thompson v. Boonville, 61 Mo. 282; Mathews v. Alexandria, 68 Mo. 119.

W. C. Marshall for respondent.

(1) Section 373, Revised Ordinances of St. Louis, is not a delegation of legislative power. (2) Section 373 is a regulation and not a delegation of legislative power. Flint v. Russell, 5 Dill. 151; Ruggles v. Collier, 43 Mo. 353; City v. Clemens, 43 Mo. 395; City v. Clemens 52 Mo. 133; Thomson v. Boonville, 61 Mo. 282; Mathews v. Alexandria, 68 Mo. 119. (3) Section 375, Revised Ordinances, 1887, is not a delegation of legislative power. Township Organization Case, 55 Mo. 296; Fell v. State, 42 Md. 72; Caldwell v. Barrett, 73 Ga. 604; Com. v. Weller, 77 Ky. 218; City v. Noyes, 38 N.H. 279; Erlinger v. Boneau, 51 Ill. 94; Locke's Appeal, 72 Pa. St. 492; Smith v. Janesville, 26 Wis. 291; Com. v. Kimball, 31 Am. Dec. 337.

OPINION

Sherwood, J.

In order to determine whether the motion filed to quash the information was properly denied, requires a recital and examination of certain provisions of the city charter which have been brought to our attention. Paragraph 6, of section 26, pages 322, 323 of the charter empowers the city: "To regulate stone quarries and quarrying of stone, and the slaughtering of animals; provide for the erection, management and regulation of slaughterhouses; prevent the driving of stock through the city; prohibit the erection of soap factories, stock-yards and slaughterhouses, pig pens, cow stables and dairies, coal oil and vitriol factories within prescribed limits, and to remove and regulate the same; and to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health, or the manufacture or vending of articles obnoxious to the health of the inhabitants; and to declare, prevent and abate nuisances on public or private property and the causes thereof."

Paragraph 14 of the same section and article of the charter, pages 326, 327, also empowers the city as follows: "Finally, to pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the state, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penalties not exceeding $ 500, and by forfeitures not exceeding $ 1,000."

Section 34 of the same article, page 328, declares that: "No stone quarry shall be opened, or brick kiln located, or soap factory, slaughterhouse, bone or rendering factory erected within the distance of three hundred feet of any dwelling house built and inhabited before such opening, location or erection, without the consent, in writing, of the owner and of the occupant of every such house. The assembly shall provide, by ordinance, for the effectual enforcement of this section."

The investigation before us also requires the recital and discussion of two sections of the Revised Ordinances of 1887, the one on which defendant was fined, and the one next preceding it. These sections are as follows:

"Sec. 372. Hereafter no stone quarry shall be opened, or brick kiln located, or soap factory, slaughterhouse, bone or rendering factory, erected within the distance of three hundred feet of any dwelling house, built and inhabited before such opening, location or erection, without first having obtained permission so to do from the municipal assembly by proper ordinance. Any person, company of persons, firm or corporation violating any or either of the provisions of this section, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $ 100 nor more than $ 500.

"Sec 373. It shall not be lawful for any person, company of persons, firm or corporation, to work a stone quarry or operate a brick kiln, or carry on a soap factory, slaughterhouse, bone or rendering factory, opened, located or erected after the passage of this article, within the distance of three hundred feet of any dwelling house built and inhabited before such opening, location, or erection, without the consent, in writing, of the...