City of St. Louis v. Waterloo-Carondelet Tpk. & Ferry Co.

• Decision Date: 23 October 1883
• Parties: CITY OF ST. LOUIS, Appellant, v. WATERLOO-CARONDELET TURNPIKE AND FERRY COMPANY, Respondent.
• Court: Missouri Court of Appeals

14 Mo.App. 216

CITY OF ST. LOUIS, Appellant,

v.WATERLOO-CARONDELET TURNPIKE AND FERRY COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Oct. 23, 1883.

APPEAL from the St. Louis Court of Criminal Correction, CADY, J.

Reversed and judgment.

LEVERETT BELL and SAMUEL ERSKINE, for the appellant: The city charter of St. Louis authorizes the mayor and assembly by ordinance to regulate and license all ferries into, or out of, or within the harbor, and to establish ferry rates.--2 Rev. Stat., p. 1585, sect. 26, par. 4. This is a valid grant of power.-- Chilvers v. The People, 11 Mich. 43; The People v. Mayor, 32 Barb. 102; Fanning v. Gregoire, 57 U. S. 524; Conway v. Taylor, 66 U. S. 603; Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560.

MCKEIGHAN & JONES and T. J. PORTIS, for the respondent: Whatever the people, by the state constitution, have forbidden the state government from doing, it can not indirectly do through the local goverments.-- Illinois College v. Cooper, 25 Ill. 148; Davenport v. Davenport, 13 Iowa, 229; Saving Society v. Philadelphia, 31 Pa. St. 175. A municipality may charge a reasonable compensation for the use of any improvement, or conveniences furnished and owned by it on wharf landings, but that this right must be carefully restricted to such rental charge, and must not pass this legitimate purpose.-- Packet Co. v. Keokuk, 5 Otto, 80; Packet Co. v. St. Louis, 10 Otto, 423; Cameron v. New Orleans, 20 Wall. 577; Steamboat Co. v. Port Wardens, 6 Wall. 31; Peete v. Morgan, 19 Wall. 581. A license fee, which is for revenue purposes, is a tax. When a license fee exceeds a reasonable compensation for the mere issuing of the license, as a municipal regulation under the police power, it becomes a tax, although the phraseology of a license may be retained. Cooley Const. Lim., 201; Brown v. Maryland, 12 Wall. 554; Ward v. Maryland, 18 Wall. 420.

LEWIS, P. J., delivered the opinion of the court.

This is a proceeding against the defendant for keeping a ferry, without a license, within the limits of the city of St. Louis. The court of criminal correction gave judgment for the defendant. The first section of ordinance 10,414, as amended by ordinance 11,239, adopted by the municipal assembly of the city of St. Louis, prohibits the keeping of a ferry within the limits of the city, without a license therefor, “under a penalty of thirty dollars for each day such ferry may be kept without a license.” The evidence was ample to sustain the complaint, and, if the ordinance is valid, there seems to be no reason why the plaintiff should not have recovered.

The twenty-fourth section of the ordinance makes some special provisions applicable only to the licensing of the present defendant to keep a ferry. The bulk of the argument here for the defendant is directed against the constitutional validity of this section. As the plaintiff's claim is made under the first section, and is not, in any manner affected by the provisions of the twenty-fourth, so much of the discussion appears to be a waste of time. The validity or invalidity of the twenty-fourth section has nothing to do with the plaintiff's right of recovery under the first. The provisions of the ordinance are easily severable and full effect must be given to at least so many of them as are unimpeachable.

The municipal assembly of St. Louis, although in its forms of procedure, and in its making of certain general regulations for the government of the city's inhabitants, it has characteristics of a legislative body, yet, in its relation to the state constitution, it is in no sense a part or branch of that one of the three divisions of government which, in the distribution of powers, is designated as the legislative department. In that relation it is purely ministerial, or executive, putting into specific effect, within a limited territory, the general purposes of constitutional and statutory rules of action. Where the General Assembly of the state can operate upon particular objects, only through general laws, the municipal assembly of St. Louis necessarily, and by the plain terms of the charter, acts directly upon the object itself. By ordinance, it opens, vacates, alters, or improves a street, under its special name or description; constructs a sewer in a particular locality, and regulates its use; erects a wharf or dock, and establishes a market place, or a public park. In many other ways it does and must do, what the General Assembly could not do without violating the constitutional inhibitions against special legislation. All is done by express authority of the city charter, whose constitutionality in that regard has never been questioned. Rev. Stats. p. 1585. The same authority permits...