City of St. Louis v. Foster

• Decision Date: 31 March 1873
• Citation: 52 Mo. 513
• Parties: CITY OF ST. LOUIS, Respondent, v. DAVID FOSTER, Appellant.
• Court: Missouri Supreme Court

52 Mo. 513

CITY OF ST. LOUIS, Respondent,

v.DAVID FOSTER, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Criminal Court.

L. M. Shreve, for Appellant.

The ordinance was invalid, because it had no enacting clause. The book of ordinances, a revision, has but one ordinance properly enacted, whereas each ordinance must be for itself ordained. The ordinance was also invalid, because it had not been read in council three different days, and also because it was not printed and published as required by charter; nor was it admissible in evidence, not being certified by the register.

E. P. McCarty, for Respondent.

“Revised Ordinances 1871” constitute one ordinance at the beginning of which is the ordaining clause.

The provision for publication of ordinances is merely directory. Elmendorf vs. Mayor of New York, 25 Wend., 696.

The statute roll or authorized publication is conclusive in this action that this is the law. (Pacific Railroad vs. The Governor, 23 Mo., 362; Treasurer of City of Camden vs. Mulford, 2 Dutch, 49.)

It was not necessary that the copy of ordinance introduced in evidence should be certified by the city register.

WAGNER, Judge, delivered the opinion of the court.

The defendant was prosecuted for violating an ordinance of the City of St. Louis, prohibiting the setting up and keeping gaming tables and gambling devises. Upon the trial the defendant objected to the admission of the City ordinances in evidence, on the alleged ground, that they were invalid. The objection was overruled, and this constitutes the main error relied on.

It is first contended that the ordinance is void and of no effect, because the style or ordaining clause appear to have been omitted. The Charter requires, that the style of the ordinances passed by the City of St. Louis shall be.--“Be it ordained by the City Council of the City of St. Louis,” but it is now here declared, that if this form is not pursued, the ordinances shall in consecquence thereof become void. This question has been considered by the Court at the present term in the case of the City of Cape Girardean vs. Riley et al., (52 Mo. 424) where in a Legislative Act, the constitutional requirement of an enacting clause was omitted, and we held, that the provision as to the style of laws was directory, and that a law passed with all the forms and solemnities prescribed by the constitution, would not be rendered invalid, because the style or enacting clause failed to appear in the act. That case is decisive of the point we are now considering; though as a fact the objection does not seem to be true, for the revision of the City of Ordinances digests them all into one, and it commences with the proper style.

The Charter further provides, that every ordinance shall be read on three different days of the stated session, at which, and before it was passed, and the objection was interposed to the reading of the ordinance, that this direction was not pursued. But notwithstanding this, the Court admitted it.

The law on this subject was elaborately considered in the case of the Pacific R. R., vs. The Governor, (23 Mo. 353,) and will be unnecessary to restate what was so well said by the learned Judge, who wrote the opinion in that case. It was clearly decided, that the validity of a statute, authenticated in the manner pointed out by law, could not be impeached by showing a departure from the forms prescribed by the Constitution, in the passage of the law. The same principle applies to municipal corporations.

Their Charters are their Constitutions, which authorize the Councils to act, and a City Council is “a miniature General Assembly, and their authorized ordinances have the force of laws passed by the Legislature of the State.”

A provision in a city Charter, that the yeas and nays shall be called and published, whenever the vote of the Common Council should be taken on any proposed improvement involving a tax or assessment upon the citizens, was considered by the Supreme Court of New York, notwithstanding the use of the word “shall,” to be directory merely; “the essential requisite being the determination of the corporation,...