City of St. Louis v. Bernard

• Decision Date: 28 March 1913
• Citation: 249 Mo. 51,155 S.W. 394
• Parties: CITY OF ST. LOUIS v. BERNARD.
• Court: Missouri Supreme Court

155 S.W. 394

249 Mo. 51

CITY OF ST. LOUIS v. BERNARD.

Supreme Court of Missouri.

March 28, 1913.

1. APPEAL AND ERROR (§ 671)—BILL OF EXCEPTIONS.

The Supreme Court cannot consider an assignment of error depending upon the evidence, where the bill of exceptions does not contain any evidence.

2. MUNICIPAL CORPORATIONS (§ 592)—VALIDITY OF ORDINANCES—CONTRAVENING STATUTE.

A city cannot authorize an act prohibited by the general state laws, and where the statutes expressly limit a city's power to legislate upon a given subject, it cannot legally exceed such limits in its ordinances.

3. MUNICIPAL CORPORATIONS (§ 592)—ORDINANCES — VALIDITY — CONTRAVENING STATUTE.

Rev. St. 1909, §§ 4804, 4805, prohibiting the sale of all goods and merchandise on Sunday, except "drugs, medicines, provisions or other articles of immediate necessity," does not conflict with an ordinance prohibiting the keeping open of a grocery store and selling goods therein after 9 o'clock in the morning on Sunday; the statute not expressly authorizing stores to be kept open on Sunday, but leaving that open for legislation by a city.

In Banc. Error to St. Louis Court of Criminal Correction; V. H. Falkenhainer, Judge.

Herman Bernard was charged with violating an ordinance of the city of St. Louis prohibiting the keeping open of a grocery store and selling goods on Sunday, and from a judgment quashing the information the city brings error. Reversed and remanded.

Writ of error by which plaintiff seeks to reverse the judgment of the St. Louis court of criminal correction quashing an information filed by the city attorney, charging defendant with keeping open a grocery store and selling cured meats and pigs' feet on Sunday, the 13th day of November, 1910,

after the hour of 9 o'clock in the forenoon of said day, contrary to the provisions of an ordinance of said city.

To obtain a proper understanding of the issues presented to the trial court, we will insert in this opinion a copy of the ordinance which defendant is charged with having violated. It reads as follows:

"An ordinance to regulate the hours of opening and closing of grocery stores upon Sunday, and to regulate the sale of groceries and other articles by grocery stores upon Sunday, and prescribing a penalty for the violation thereof.

"Be it ordained by the municipal assembly of the city of St. Louis as follows:

"Section 1. Grocery—Hours on Sunday— Selling:—Any grocery store may be kept open on Sunday morning until nine o'clock a. m., for the sale of the articles hereinafter described; but no grocer shall keep open or expose for sale or sell any articles hereinafter described after nine o'clock a. m., upon Sunday.

"Sec. 2. Penalty for Keeping Open Store or Selling:—Any keeper of a grocery store or grocer who shall keep open said store or expose for sale or sell any articles on a Sunday after nine o'clock a. m., shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty dollars and not more than one hundred dollars for each and every offense.

"Sec. 3. Store Keepers Defined—Sale of Article Prohibited When:—A grocery keeper or grocer within the meaning of this ordinance shall be defined to be any person, persons, copartnership or corporation dealing in sugar, tea, coffee, country produce, garden products, canned goods, and the like; dried beef, hams, shoulders, sausages, smoked and cured meats of all kinds; or dealing in any other articles that are usually carried for sale in grocery stores.

"Sec. 4. Owner and Agents Liable:—A keeper of a grocery store, within the meaning of this ordinance shall be construed to include the agents and servants of such keeper as far as the penalties of this ordinance and its liabilities thereunto are concerned."

The information is as follows: "City of St. Louis, Missouri, November 16th, A. D. 1910. Herman Bernard, To the City of St. Louis, Dr. To one hundred dollars, for the violation of an ordinance of said city, entitled `An ordinance in revision of the general ordinances of the city of St. Louis,' being ordinance number 25024, sections 1, 2, 3, and 4, approved March 28th, 1910, in this, to wit: In the city of St. Louis, and state of Missouri, on the 13th day of November, 1910, and on divers other days and times prior thereto, the said Herman Bernard did then and...