The State v. Butler

• Decision Date: 09 December 1903
• Citation: 77 S.W. 560,178 Mo. 272
• Parties: THE STATE v. BUTLER, Appellant
• Court: Missouri Supreme Court

77 S.W. 560

178 Mo. 272

THE STATE v. BUTLER, Appellant

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Boone Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Reversed.

T. J Rowe for appellant.

(1) The ordinance upon which depended the authority of the board of health is void. First. It is void because the contract being for public work, the ordinance should have emanated from the Board of Public Improvements, and should have provided for the letting of the contract by such board. Charter St. Louis art. 6, sec. 27; State ex rel. v. Barlow, 48 Mo. 17; Cole v. Skrainka, 37 Mo.App. 433; Id., 105 Mo. 303; City v. Gleason, 89 Mo. 67; State ex rel. v City, 161 Mo. 371. Second. It is void because under the charter the Municipal Assembly has no authority to empower the Board of Health to make contracts. (a) The health department is the health commissioner. Charter, art. 12 secs. 1, 2, 3. (b) Even in matter of abatements of nuisances, he is the department. Id., secs. 6, 7. (c) The charter is barren of an authority in the board to contract. (2) The ordinance undertakes to delegate to the Board of Health the legislative powers of the Assembly. Ruggles v. Collier, 45 Mo. 353; Sheehan v. Gleason, 46 Mo. 100; Trenton v. Coyle, 107 Mo. 193. (3) The indictment is repugnant, because it shows by its averments that there was nothing which was to come before the Board of Health. The defendant is alleged to have averred that a bid was to be made, but the indictment does not aver that such proposition was in fact about to be made. State v. Burke, 151 Mo. 136; In re Yee Gee, 83 F. 145; State v. Howard, 137 Mo. 289. (4) By reason of the invalidity of the ordinance, there was no subject-matter of inquiry which could by law be brought before the Board of Health for the vote or decision of its respective members. Hence, the indictment does not state an offense under the statute. R. S. 1899, secs. 2084, 2089; Conner v. Reese, 29 S.W. 352; Newman v. State, 97 Ga. 367; Gunning v. People, 59 N.E. 494; United States v. Boyer, 85 F. 425. The ordinance pleaded in the indictment does not show that the Board of Health had authority under the city charter to let the garbage contract. The indictment should allege all the facts which gave the Board of Health authority to act. The ordinance as pleaded in the indictment is void. State v. Terry, 109 Mo. 616. An indictment should contain an allegation of every essential fact constituting the offense. State v. Kirby, 115 Mo. 447. An indictment must allege every substantive fact which is necessary to establish the guilt of the accused, and which the State is required to prove. State v. Green, 111 Mo. 585; State v. Reed, 117 Mo. 604. An indictment must stand on its own bottom, and can not be supported or propped by instructions. State v. Hesseltine, 130 Mo. 468. The cardinal principle of pleading in prosecutions for felony is that everything constituting the offense must be pleaded with certainty, and nothing is left to implication. State v. Rector, 126 Mo. 328; State v. Ferguson, 152 Mo. 92; State v. Jones, 168 Mo. 403; State v. Meysenburg, 171 Mo. 1. Courts will take judicial notice of a public statute. Emerson v. Railroad, 111 Mo. 161; State ex rel. v. Seibert, 130 Mo. 202. Courts will take judicial notice of the charter of St. Louis. Kansas City v. Smart, 128 Mo. 274. The rule is well settled in this State that courts will not take judicial notice of ordinances of a city, but they must be pleaded and proved like other facts. St. Louis v. Roche, 128 Mo. 544; Trenton v. Collier, 68 Mo.App. 483. Ministerial powers may be delegated by a city, but legislative powers can not be. St. Louis v. Russell, 116 Mo. 248; St. Louis v. Howard, 119 Mo. 41. The question of sufficiency of an indictment must be determined from the indictment itself, and is not dependent on the proof. People v. Webb, 86 N.W. 406; People v. Bates, 71 N.Y.S. 123. (5) Instruction 4, given at the instance of the State, is erroneous. The court should have instructed the jury that ordinance 20476 could not go into effect if passed by a majority vote of the Council and House of Delegates until ten days after its approval by the mayor of the city of St. Louis. Until that date it could not become the duty of the Board of Health to advertise for sealed proposals under the terms of said ordinance, or to award any contract thereunder, or to consider any matter referred to in said ordinance or discharge any duty therein defined. (6) The overwhelming weight of the whole evidence in the case sustains defendant's contention that he never saw Dr. Chapman at his residence at any time from September 1, 1901, to October 4, 1901.

Wm. M. Williams also for appellant.

(1) The demurrer to the indictment was well taken. The motion in arrest of judgment should have been sustained. (a) The contract for the sanitary disposal of garbage found in the streets and on the private premises in the city of St. Louis is a contract for "public work." Such a contract, under the charter of the city, can only be let by the Board of Public Improvements, and it is a condition precedent to the passage of an ordinance authorizing such work that an estimate of the costs shall first be made by said board and then the Municipal Assembly may by ordinance, approved by the mayor, empower said board to let the contract. Sec. 27, art. 6, charter; State ex rel. v. City of St. Louis, 161 Mo. 371; State ex rel. v. Barlow, 48 Mo. 16; Brambrick v. Campbell, 37 Mo.App. 465. (b) The charter evidently contemplates one board to make all contracts for "public work" authorized by the charter and one commissioner of supplies to make the purchases for said city. The commissioner of supplies is provided for by section 29 of article 4 of the charter. (c) The provision in regard to public work, and confining the letting of contracts therefor to the Board of Public Improvements, can not be restricted to work arising in the departments under control of the members of the Board of Public Improvements. The charter refers, in section 27, to all public work contemplated by the charter. (d) There is nothing in the charter referring to the Board of Health, from which the inference can be drawn that this board was to be the contracting agent of the city in any particular. The sections appertaining to this board confer no such power directly or by necessary implication. Upon the contrary, the inference is almost irresistible that it was not the intention to confer any such authority upon the Board of Health. The board may abate nuisances, but when a debt is to be incurred in so doing, the work is to be directed by and under the supervision of the Board of Public Improvements. "All contracts for work contemplated by this article, on which special taxbills are to be issued, shall be entered into by the president of the Board of Public Improvements, in the name of the city." This is in the article creating and defining the duties of the Board of Health. Art. 12, sec. 7, charter. (e) The mere fact that it was a protection to the public health to dispose of the slops and garbage by the Merz process, does not authorize a departure from the charter requirements. Kean v. Klausman, 21 Mo.App. 485. (f) The ordinance can not be upheld under the "general welfare clause." This clause would be broad enough to confer authority upon the Municipal Assembly and the mayor to delegate this duty to the Board of Health but for the special provisions of the charter regulating the matter and expressly providing for such contracts. Where there are special and general grants, the power to pass by-laws under the special or express grant can only be exercised as to the matters covered thereby to the extent and in the manner prescribed by such special provisions. The power is not enlarged as to these particular matters by the "general-welfare clause." 1 Dillon on Municipal Corporations (4 Ed.), secs. 315 and 316. (2) (a) If the ordinance was void and conferred no power upon the Board of Health to let the contract for the sanitary disposal of garbage, then this contract was not a matter which by law might come before the board, and hence the alleged offer to a member of said board was not to influence his vote in any matter which "may by law be brought before him." The indictment is predicated upon the statute and is not for a common-law offense. Newman v. State, 23 S.E. 83; Ruffin v. State, 38 S.W. 160; Commonwealth v. Reese, 29 S.W. 352; Kitby v. State, 31 A. 213; U. S. v. Boyer, 85 F. 425; Perly v. State, 2 Cal. 564; Collins v. State, 25 Tex.Supp. 202. (b) The statute is to be strictly construed, and any doubt about its meaning must be resolved in favor of defendant. State v. Burke, 151 Mo. 136; State v. Howard, 137 Mo. 289. (3) The indictment is not sufficient to sustain the conviction, as the ordinance is not sufficiently pleaded and set out to enable the court to see from the indictment itself that it is a valid ordinance of the city of St. Louis. The substance of the ordinance must be set forth. The courts will not take judicial notice thereof. State v. Terry, 109 Mo. 617; Schott v. People, 89 Ill. 195; 1 Dillon on Municipal Cor. (4 Ed.), sec. 423; St. Louis v. Stoddard, 15 Mo.App. 179; Harker v. New York, 17 Wend. 200; St. Louis v. Gleason, 89 Mo. 76. (4) The court erred in admitting the testimony of the witness, Dr. Albert Merrill. It could throw no light upon the defendant's intent if he made the offer to the witness, Dr. Chapman, as testified to by the latter. State v. Spray, 74 S.W. 851; People v. Sharpe, 107 N.Y. 466; State v. Fitchette, 92 N.W. 527; State v. Vance, 94 N.W. 204; People v. Hurley, 58 P. 814. (5) The court erred in failing to give the instruction asked by the defendant, directing the jury to return a verdict of ...