State v. Binder

• Decision Date: 31 October 1866
• Citation: 38 Mo. 450
• Parties: STATE OF MISSOURI, Respondent, v. HENRY BINDER, Appellant.
• Court: Missouri Supreme Court

38 Mo. 450

STATE OF MISSOURI, Respondent,

v.HENRY BINDER, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from the St. Louis Criminal Court.

Woehner & Kehr and Brockmeyer, for appellant.

The first section of “an act confirming certain powers to the citizens of St. Louis county,” approved March 4, 1857, (Laws of Mo. 1857, p. 673,) provides that “the corporate authorities of the different cities in the county of St. Louis shall have power, whenever a majority of the legal voters of the respective cities in said county authorize them so to do, to grant permission for the opening of any establishment or establishments, within the corporate limits of said cities, for the sale of refreshments of any kind (distilled liquors excepted), on any day of the week.”

The legislature clearly delegated to the city authorities, by the above enactment, power, under certain conditions--i. e. whenever a majority of the legal voters authorize them so to do--to grant permission for the sale of refreshments on Sunday, repealing not only by implication but in terms any law inconsistent with the authority thus delegated--§ 4 of the act above cited. The section of the law under which the defendant is indicted (“Act concerning crimes and punishments,” art. 8, § 36, R. C. 1855, p. 631) makes the selling of any article on Sunday, or the keeping open of any establishment for such sale, an offence, is therefore inconsistent with the authority granted in the act of 1857, and necessarily repealed thereby--at least so far as any person is concerned who keeps open an establishment for the sale of refreshments (except distilled liquors) on Sunday, under permission from the city authorities, authorized to give such permission by a majority of the legal voters of the city. It is respectfully submitted, that the proof shows fully and clearly that

I. The defendant is an inhabitant of the city of St. Louis, and that the acts alleged against him in the indictment were committed within the corporate limits of said city.

II. He acted under permission, granted to him and the other inhabitants of said city by the corporate authorities thereof, to keep open his establishment or place of business for the sale only of soda water and other beverages, not being distilled liquors, or compositions of which distilled liquors form a part.

The General Assembly is the only law-making power in the State: the ordinances of the city have validity and effect only in so far as they flow from and exercise or carry out some power delegated by the Legislature. “The legislative power shall be vested in a General Assembly”--Const. Mo., art. 3, § 1, R. C. 1855, p. 65. And “the General Assembly has power to incorporate cities, towns, &c., and vest them with authority to legislate in regard to their police”--State v. Simonds, 3 Mo. 414. “The grant of power to pass ordinances for the government of the city of St. Louis, not inconsistent with the constitution and laws of the State, is not a delegation of the law-making power of the government delegated by the constitution to the General Assembly”-- Metcalf v. City of St. Louis, 11 Mo, 102.

III. It remains, then, only to be proved, that the condition imposed by the Legislature for the vesting of this power in the corporate authorities of the city has been complied with. It is not an unusual proceeding by means of which to ascertain the views of electors upon important subjects. The laws are numerous directing such votes to be taken, and the courts have declared these laws to be constitutional--City of St. Louis v. Alexander, 23 Mo. 483.

Where an election is legally proposed, and proper notice given to the persons entitled to vote, it is necessary, from the very nature of elections to construe the neglect to vote on the part of legal voters into an assent to the determination of the majority of those who do--Wilcox on Corp. 546, § 119; Rex v. Foxcraft, 2 Bur. 1021; Grant on Corp. 68-70, and authorities there cited; Rex v. Bailiff of Ipswich, 2 Salk. 434; Gosling v. Veley, 7 A. & E. 406; State v. Deliessline, 1 McCord, 52; State v. Huggins, Harp. 139.

A recent decision of this court seems to leave no room for anything further to be said in this respect--State ex rel., &c., v. Mayor of St. Joseph, 37 Mo. 270.

HOLMES, Judge, delivered the opinion of the court.

The defendant was convicted upon an indictment containing two counts, one for selling fermented and distilled liquors, and one for keeping open an ale and porter house, on Sunday, under the thirty-sixth section of the eighth article of the statute concerning Crimes and Punishments--R. C. 1855, p. 631.

It was proved for the State that the defendant kept his beer-house open on Sunday for the sale of beer only, and that beer was a fermented liquor, and was sold there on that day. No other evidence was offered on the part of the prosecution.

The defendant gave in evidence a city ordinance, entitled “An ordinance providing for taking the sense of the legal voters of the city of St. Louis respecting the opening of establishments within the city of St. Louis for the sale of refreshments of any kind (distilled liquors excepted) on any day of the week,” passed in pursuance of the act of the General Assembly, entitled “An act confirming certain powers to the citizens of St. Louis county,” approved March 4, 1857, which provided “that the corporate authorities of the different cities in the county of St. Louis shall have the power, whenever a majority of the legal voters of the respective cities in said county authorize them so to do, to grant permission for the opening of any establishment or establishments, within the corporate limits of said cities, for the sale of refreshments of any kind (distilled liquors excepted), on any day in the week.”

This ordinance provided that an election should be held on the first Monday in April, 1858, in the city of St. Louis, for the purpose of enabling the legal voters of the city to determine by vote the question whether the ...