City of Tarkio v. Cook

• Decision Date: 05 February 1894
• Parties: CITY OF TARKIO v. COOK.
• Court: Missouri Supreme Court

25 S.W. 202

120 Mo. 1

CITY OF TARKIO v. COOK.

Supreme Court of Missouri, Division No. 1.

February 5, 1894.

MUNICIPAL CORPORATIONS — REGULATION OF BILLIARD HALLS — VALIDITY OF ORDINANCE — JUROR — WAIVER OF OBJECTIONS.

1. Const. art. 4, § 28, providing that "no bill shall contain more than one subject, which shall be clearly expressed in its title," has no application to city ordinances, unless a statute expressly makes it applicable thereto.

2. A city ordinance is not void because the enacting clause does not follow the statutory form if the city charter is silent as to the effect of such irregularity.

3. Where a city is given power generally to pass ordinances to maintain the peace, good government, health, and welfare of the city, and expressly to regulate "billiard tables" on "which games are played for amusement," (Rev. St. 1889, § 1589,) it may provide by ordinance that no billiard hall shall be kept open, nor games played therein, after 9 p. m.

4. Such ordinance is not void as being unreasonable, oppressive, discriminating, and in derogation of common right.

5. Where the maximum fine imposed for the violation of a city ordinance is within the limits prescribed by the city's charter, the courts will not inquire whether such fine is reasonable.

6. Unless a juror is challenged, and an exception saved to the ruling of the court, his competency cannot be considered on appeal.

7. An ordinance contained in a printed book, which is in charge of the proper custodian, and purports to have been published by authority of the city, and to contain its ordinances, is admissible without further proof.

Appeal from circuit court, Atchison county; Cyrus A. Anthony, Judge.

T. S. Cook was convicted of the violation of an ordinance of the city of Tarkio, and he appeals. Affirmed.

Hunt & Bailey, for appellant. Lewis & Ramsay, for respondent.

MACFARLANE, J.

After an appeal from the mayor's court of the city of Tarkio, and upon a trial in the circuit court, defendant was convicted of the violation of an ordinance of said city, and the payment of a fine of $25 adjudged against him, from which he appealed to this court, on the ground that said ordinance was in violation of section 28, art. 4, of the constitution of the state.

1. The ordinance was entitled "An ordinance to regulate billiard halls, and to regulate, levy, and collect license on billiard and other tables upon which games are played for amusement, and to prohibit gambling therein." The sixth section, upon which defendant was convicted, required that no billiard halls should be kept open, nor should any tables therein be used for playing games thereon, after 9 o'clock in the evening. Defendant was charged also with violating other independent sections of the ordinance, but, as there was no conviction under them, their provisions need not be considered. If section 6 is constitutional and valid, it could be enforced, though all the remaining sections of the ordinance were void. City of St. Louis v. St. Louis R. Co., 89 Mo. 44, 1 S. W. 305; State v. Clarke, 54 Mo. 17.

2. The constitutional provision that "no bill shall contain more than one subject, which shall be clearly expressed in its title," (section 28, art. 4, of the constitution,) of which, it is claimed, the ordinance in question is violative, was intended to apply only to state legislation, and has no application to ordinances of this city. The article treats exclusively of the legislative department of the state, and the first section declares: "The legislative power, subject to the limitation herein contained, shall be vested in a senate and house of representatives, to be styled the General Assembly of the State of Missouri." Municipal legislation is thus clearly excluded. 1 Dill. Mun. Corp. § 47. Under authority of the constitution the legislature has provided by general law for the organization of cities and towns, and to that law we must look to ascertain the powers conferred, and the manner in which they may be exercised. Under this law we find no requirement that the title to an ordinance shall conform to the requirements of the constitution relating to legislative bills; indeed, we find no requirement or direction on the subject.

3. In the next place, it is insisted that the enacting clause of the ordinance does not conform to the requirements of the statute. This objection does not, in our opinion, invalidate the ordinance. It has been held by this court, and is well-settled law, that a city ordinance would not be void in consequence of the enacting clause not following the prescribed form, the charter being silent as to the effect of such irregularity. City of St. Louis v. Foster, 52 Mo. 514; Dill. Mun. Corp. § 309; Town of Tipton v. Norman, 72 Mo. 381. These cases are decisive of this one.

4. The ordinance is also attacked as being unauthorized by the charter. This objection cannot be sustained. Power is not only given generally to pass such ordinances as may be expedient to maintaining the peace and good government, health, and welfare of the city, but expressly to regulate "billiard tables" on "which games are played for amusement." Rev. St. 1889, § 1589. There can be no doubt under this authority the city had the power to pass an ordinance relating to and regulating not only the tables upon which the game of billiards is played, but also the halls or rooms in which they are kept and used.

5. It is insisted also that the ordinance should not be enforced, because it is unreasonable, oppressive, discriminating, and in derogation of common right. This objection is urged with much earnestness, and merits thoughtful consideration, as, doubtless, most cities of the fourth class have adopted and are enforcing ordinances on the same and kindred subjects. On the subject of general powers of municipal corporations to adopt by-laws, Judge Dillon says: "In England the subjects upon which by-laws may be made were not usually specified in the king's charter, and it became an established doctrine of the courts that every corporation had the implied or incidental right to pass...