State v. Francis
| Decision Date | 07 May 1888 |
| Citation | 95 Mo. 44,8 S.W. 1 |
| Parties | STATE ex rel. WEAR et al. v. FRANCIS et al. |
| Court | Missouri Supreme Court |
Appeal from St. Louis circuit court.
Petition for mandamus by the State ex rel. James H. Wear and others against David R. Francis and others. The writ was granted in the lower court, and defendants appeal.
Leverett Bell, for appellants. Boyle, Adams & McKeighan and H. T. Kent, for respondents.
The cause comes here on the appeal of those who were respondents in the circuit court; that court having awarded against them a peremptory writ. The only ground upon which this court can take jurisdiction of this cause is the fact that a constitutional question is involved therein; but this being the case carries with it, under recent constitutional amendments, the necessity of and the jurisdiction for determining the whole case.
1. Before going into the merits of the case, however, a preliminary question must first be determined. It is this: whether the relators, being merely private citizens, are proper parties to this proceeding. In State v. Hoblitzelle, 85 Mo. 620, it was ruled that the relator, being a contestant for an office, had a right to have an inspection of the poll-books relating to his election; but in the minority opinion it was declared that where a public right is involved, and the object is to enforce a public duty, the people are regarded as the real party, and in such case the relator need not show any legal or special interest in the result. The fact that he is a citizen, and as such interested in the execution of the laws, is the sesame which unlocks the gates of mandatory authority whenever an officer whose functions are merely ministerial refuses to perform his office, and thereby causes detriment to the public interest. In the subsequent case of State v. Railroad Co., 86 Mo. 13, the position of the minority was fully indorsed, some of the same authorities being cited in its support. The great weight of judicial decision supports this view. This point must therefore be ruled in favor of the relators.
2. The act of 1857, now to be considered, is entitled "An act confirming certain powers to the citizens of St. Louis county," and is as follows: Laws 1856-57, p. 673.
It is claimed that this act is unconstitutional, as being a delegation of legislative power. This contention cannot prevail, for the reason that the power which the legislature confers upon municipal corporations when granting them charters, with authority to pass ordinances, etc., for local self-government, has never been considered a delegation of legislative power, and does not make an exception to the rule that such legislative power, conferred upon the general assembly, is to be exercised by that body alone, and not to be delegated to others. State v. Field, 17 Mo. 529; 1 Dill. Mun. Corp. § 308, and cases cited; Metcalf v. City, 11 Mo. 103. And whenever the legislature has the power originally to confer upon a municipality authority to enact ordinances and by-laws, such power embraces within its scope the right by subsequent legislation to enlarge the chartered powers of a municipality, by enactments similar to those specified in the act under consideration, and to prescribe the methods in which such additional powers shall be exercised. The power being conceded, the mere method of its exercise becomes immaterial. State v. Cooke, 24 Minn. 247; State v. Noyes, 30 Fost. (N. H.) 279; Com. v. Bennett, 108 Mass. 27. Of course, these remarks are subject to those restrictions contained in the organic law forbidding the legislature to pass "local or special laws," "regulating the affairs of counties, cities," etc., or "incorporating cities," etc., or "changing their charters." But, at the time the act of 1857 was passed, there were no such constitutional prohibitions in existence, — no such limitations on the free exercise of legislative power. It follows from the premises that the law in question is not obnoxious to any constitutional objection. It is proper to add here that no discussion of the constitutionality of that law has ever occurred in this court. In State v. Winkelmeier, 35 Mo. 103, any expression of opinion on the subject was expressly refused, and in the subsequent case of State v. Binder, 38 Mo. 450, notice was taken of such refusal in the former case, but still no judicial utterance was made concerning the matter.
3. The next point to be determined is whether the ordinance passed in pursuance of the law just discussed, and known as ordinance No. 4137, was adopted by the requisite number of votes. That ordinance, passed March 26, 1858, is as follows:
The rule established in State v. Winkelmeier, supra, is this: That when, by law, a vote is required or permitted to be taken, and a majority of the legal voters is mentioned in such law as being necessary to carry the proposed measure, that such majority must be a majority of all the legal voters entitled to vote at such election, and not a mere majority of those voting threat. This rule, thus laid down, has since become firmly established in the jurisprudence of this state. State v. Sutterfield, 54 Mo. 392; State v. Brassfield, 67 Mo. 331; State v. Mayor, 73 Mo. 435. The case of State v. Binder, supra, is based upon its own peculiar facts, and is not, perhaps to be regarded as shaking the authority of Winkelmeier's Case, or of the other cases cited. And, even were it to be so regarded, the well-settled rule laid down in the latter cases referred to would still be followed as better, safer, and more sound. In Winkelmeier's Case the returns of the election, held in conformity to the ordinance...
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