City of St. Louis v. St. Louis Transit Co.
Citation | 165 S.W. 1077,256 Mo. 476 |
Parties | CITY OF ST. LOUIS v. ST. LOUIS TRANSFER COMPANY, Appellant |
Decision Date | 02 April 1914 |
Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Affirmed.
Randolph Laughlin for appellant.
(1) The allegation that section 1708 of the Revised Ordinances of 1900 "was at all times mentioned herein in full force and effect" is the averment of a mere conclusion of law and therefore was not admitted, either by the demurrer, or by the admission made in open court of the truth of the averments of fact. Knapp, Stout & Co. v. St. Louis, 156 Mo. 352; State ex rel. v. Aloe, 152 Mo. 476; Bradley v. Franklin County, 65 Mo. 639. (2) Section 1708 of the Revised Ordinances of 1900 was not, at the time of its passage, or at any time thereafter, "in full force and effect," but, on the contrary, is and always was invalid. State ex rel. v. Clifford, 228 Mo. 208; St. Louis v. Cool, 228 Mo. 210.
William E. Baird and Truman P. Young for respondent.
(1) The opinion in the case of State ex rel. v. Clifford, 228 Mo. 194, decided only that the entire proviso of section 1708 of the Municipal Code of St. Louis of 1901 was void. It did not decide that the entire section 1708 was void. This is obvious from a reading of the opinion. It is also obvious from the following considerations: (a) The relator's petition for the writ of mandamus attacked only the proviso. It conceded the validity of section 1708 and asked that a license be issued under that section upon payment of the proper fees. (b) When the case reached this court there was no contention raised in the brief for the relator that section 1708 was invalid in its entirety. The only question was as to the validity of the proviso. (c) The court ruled that the proviso was invalid, but remanded the case with directions to issue a mandamus for the relief asked. This judgment recognized the validity of section 1708 and required the defendant to issue a license under that section upon payment of the proper fees. (2) If this court in the case of State ex rel. v. Clifford, 228 Mo. 194, had undertaken to declare the entire section 1708 of the Municipal Code of 1901 void, the decision would have been of no effect because the question was not raised upon the record. If a court undertakes to go beyond the issues, the decision is coram non judice. The court will not sua sponte render a decision upon a legal question, nor will it create issues not raised by the pleadings. Courts can only decide the issues raised by parties litigant. The judgment of a court, in order to be valid, must rest upon a substantial foundation, in the record. Munday v. Vail, 34 N. J L. 418; Garland v. Davis, 4 How. 131; Windsor v. McVeigh, 93 U.S. 274; Reynolds v. Stockton, 140 U.S. 254; Seamster v. Blackstock, 83 Va. 232; 1 Freeman on Judgments (4 Ed.), pp. 196, 197, sec. 120-C. (3) Section 1708 is in all respects valid except that portion included within the proviso and which attempts to regulate the width of tires. The body of section 1708, exclusive of the proviso, has been in force with little change ever since January 7, 1878, and was held valid in St. Louis v. Green, 7 Mo.App. 468, and St. Louis v. Green, 70 Mo. 562. The invalidity of the proviso does not affect the body of the section. It is an old and well recognized rule that an ordinance or a statute may be void in part and valid in part, where the invalid portion is separable so that it may be discarded and the valid portion may then be enforced. St. Louis v. Dairy Co., 190 Mo. 492; State v. Bockstruck, 136 Mo. 335; Rockville v. Merchant, 60 Mo.App. 368; Lamar v. Weidman, 57 Mo.App. 507; State ex rel. v. St. Louis, 241 Mo. 231.
This is an action by the city of St. Louis to recover from the defendant corporation certain license taxes, upon vehicles operated by it in the city of St. Louis, for the years 1905, 1906, 1907, 1908, 1909, and 1910. The petition contains a count for each year. The first count of the petition is thus outlined in defendant's abstract:
The abstract before us alleges that the other five counts were in the same form and prayed judgment for the same sum in each, but the years mentioned were different.
To this petition a general demurrer was filed and overruled, and the defendant refusing to plead further, judgment was entered for the plaintiff for the sum of $ 4182.63, from which said judgment the defendant has appealed. The city of St. Louis being a party, the jurisdiction is lodged here, notwithstanding the amount involved.
The turning point in the case is the validity or invalidity of the ordinance pleaded. Other incidental questions are suggested, which with the vital question will be noted in the course of the opinion.
I. At some time prior to April 3, 1900 (the counsel for defendant says in 1898), the city of St. Louis passed what counsel denominates the "Wide-Tire Ordinance." Counsel for defendant further gives us the information that on April 3, 1900, the legislative branch of the city government of the city of St. Louis
In the view we take of the law of this case, we should set out said section 1708 in full. It reads:
To continue reading
Request your trial