24 S.W. 770 (Mo. 1893), The City of St. Louis v. Howard

Citation:24 S.W. 770, 119 Mo. 41
Opinion Judge:Sherwood, J.
Party Name:The City of St. Louis, v. Howard, Appellant
Attorney:T. J. Rowe for appellant. W. C. Marshall for respondent.
Case Date:December 23, 1893
Court:Supreme Court of Missouri
 
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Page 770

24 S.W. 770 (Mo. 1893)

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...

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