City of St. Louis v. Withaus

• Citation: 16 Mo.App. 247
• Parties: CITY OF ST. LOUIS, Appellant, v. JOHN WITHAUS, Respondent.
• Decision Date: 11 November 1884
• Court: Court of Appeal of Missouri (US)

16 Mo.App. 247

CITY OF ST. LOUIS, Appellant,

v.JOHN WITHAUS, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 11, 1884.

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

Affirmed.

LEVERETT BELL and ASHLEY C. CLOVER, for the appellant.

KLEIN & FISSE, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

The defendant was prosecuted in the police court of the city of St. Louis for a violation of ordinance 12,509, entitled “an ordinance to prohibit heavy driving on certain streets,” approved August 4, 1883. On trial anew in the court of criminal correction, defendant was discharged.

It appears from the agreed statement of facts upon which the cause was submitted below, that the ordinance in question was passed at a special session of the municipal assembly, called by the mayor as provided by the city charter. Its object is that indicated by its title.

It is provided by section 18 of article 4 of the charter of St. Louis (2 Rev. Stats. 1592), that “the mayor may, by proclamation, call special sessions of the assembly, giving not less than three days' notice, and shall specially state to them when assembled the objects for which they have been convened, and their action shall be confined to such objects.”

The special session at which the ordinance under consideration was passed, was assembled by virtue of a proclamation of the mayor dated June 6, 1883, which directed that it should commence on June 9, 1883.

When the two houses were assembled under this proclamation, the mayor stated the objects for which they were convened in a message in which the mayor says: “The primary object of the present special session is the adoption of an appropriation bill. * * * I also submit to you the dram-shop ordinance. * * * A third matter to which your attention is called is the question of licensing meat-shops.” * * * The message concludes as follows:--

“I have no other legislation to suggest at present. It is not my wish to unnecessarily prolong the session. I have called it to obviate any embarrassment arising by the recess taken in the first special session from June 5th to October 16th. It rests with you to determine when the special session shall end. It must, of course, terminate prior to October 16th. I am not averse to submitting for your consideration any measure, if satisfied that the public interests demand that it shall be heard.”

The three objects set forth above, are the only ones named in the message as objects for convening the session.

In the opening paragraph of the message, the mayor says: “You are convened in special session to-day, under the proclamation of the 6th instant, issued pursuant to section 18 of article 4 of the city charter; and I will briefly state the objects for which you are convened, first remarking, however, that your action is, by the above mentioned provision of the charter, confined to such objects as I may now, or shall hereafter during the pendency of the session submit to you.”

In accordance with the intimation thus conveyed, G. W. Parker, temporarily and lawfully acting as mayor, on June 15, and on a day when the assembly was in session under the above proclamation, sent a message to the assembly submitting for consideration the ordinance to prohibit heavy driving on certain streets, now before us, which had been introduced through the house of delegates. It is plain that this was not one of the objects named in the mayor's message delivered upon the assembling of the special session.

The state constitution provides (art. V., sect. 9), that the governor may convene the general assembly on extraordinary occasions by proclamation “wherein he shall state specifically each matter concerning which the action of that body is deemed necessary;” and the general assembly is forbidden (art. IV., sect. 55), when in extra session, “to act upon subjects other than those specially designated in the proclamation by which the session is called, or recommended by special message to its consideration by the governor after it shall have convened.”

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