City of Tarkio v. Cook

• Decision Date: 05 February 1894
• Parties: The City of Tarkio v. Cook, Appellant
• Court: Missouri Supreme Court

25 S.W. 202

120 Mo. 1

The City of Tarkio v. Cook, Appellant

Supreme Court of Missouri, First Division

February 5, 1894

Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

Hunt & Bailey for appellant.

(1) This ordinance is clearly violative of section 28, article 4 of the constitution of the state of Missouri, in this: it is double. R. S. 1889, p. 70; State v. Miller, 45 Mo 495; City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. Mead, 71 Mo. 266. Regulating the room is not germane to the ordinance. State v. Persinger, 76 Mo 346; Cooley's Const. Lim. [5 Ed.], 178; People v. Parks, 58 Cal. 624; Huber v. People, 49 N.Y. 132; State ex rel. v. Miller, 100 Mo. 439; Murphy v. State, 73 Tenn. 373; State v. Burnett, 27 Kan. 213; San Antonio v. Gould, 34 Texas, 49; Stewart v. Father Mathews, 41 Mich. 17; State ex rel. v. County Ct., 102 Mo. 531. (2) The charter of a city is to the ordinances of a city what the constitution of the state is to the laws of the state, and the same rule of construction applies. Constitution of state, art. IX, sec. 7; Webb v. Lafayette County, 67 Mo. 363; Quinette v. City of St. Louis, 76 Mo. 402. (3) The charter of cities of the fourth class is found in 1 Revised Statutes of 1889, page 446, section 1589. (4) The ordinance does not contain the enacting clause provided for by the statute, nor does the respondent anywhere show that it was passed in accordance with the law. 1 R. S., p. 450, secs. 1596, 1597, 1599. (5) Tarkio being a city of the fourth class, it has only those powers: First, which are granted in express words; second, those necessarily and fairly implied in, or incident to, the power expressly granted; third, those essential to the declared object and purposes of the corporation and can exercise no powers except such as are expressly or by necessary implication granted in the instrument of its creation. 1 R. S. 1889, p. 446, sec. 1589. This ordinance is clearly in violation of the charter of cities of the fourth class. Knox City v. Thomas, 19 Mo.App. 523; Ruggles v. Collier, 43 Mo. 376; Thompson v. Schermebom, 6 N.Y. 92; St. Louis v. Telephone Co., 96 Mo. 623; 1 Dillon on Mun. Corp. [3 Ed.], sec. 89; City v. Swope, 79 Mo. 448; Leach v. Cargil, 60 Mo. 316; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 221; St. Louis v. Laughlin, 49 Mo. 559. (6) The general welfare clause of a charter which follows a long list of specified powers, should not be construed so as to enlarge the powers of the city further than is necessary to carry into effect the specific grant of power. The welfare clause in the charter of cities of the fourth class falls clearly within this rule laid down by the supreme court of this state. 1 R. S. 1889, sec. 1589; Knapp v. Kansas City, 48 Mo.App. 485; Trenton v. Clayton, 50 Mo.App. 535. (7) The ordinances of municipal corporations are subject to revision by the courts, and though large discretion is allowed, yet when an ordinance is found to be in conflict with the charter, or not reasonably incident to the powers conceded in the charter, it will be held void. City v. Riley, 72 Mo. 220. (8) This ordinance is unreasonable, oppressive, partial, unfair, against public policy, discriminating, and in derogation of common rights. It attempts to regulate the room and prohibit the running of tables in a room adjoining other business, and declares that the owner of a billiard table shall not sell cigars or give a lunch, and if he does sell cigars and give a lunch, he shall close his business at 9 o'clock P. M., but all other business in the city can run all night, if the owners so desire. City v. Telephone Co., 96 Mo. 623; City v. Riley, 72 Mo. 220; City v. Telephone Co., 31 Mo.App. 23; Corrigan v. Gage, 68 Mo. 541. Railroad v. City, 85 Mo. 674; Kelley v. Meeks, 87 Mo. 397; Cooley's Constitutional Lim., 393. (9) Where an ordinance is made up of unwarranted, unfriendly and unjust discriminations as against certain persons, the courts do not hesitate to pronounce it void and altogether inoperative. 1 Dillon on Mun. Corp. [5 Ed.], sec. 322; 1 Dillon on Mun. Corp. [3 Ed.], p. 331, secs. 319, 320, 321, 322 (and foot notes), 323, 324, 327 and 329; Field on Corporations, p. 331, sec. 296, and p. 336, sec. 301. The nature of a license is to regulate. 1 Dillon on Mun. Corp. [3 Ed.], secs. 357, 358, 359, 360 and 361. Ordinances must conform to state law. 1 R. S. 1889, p. 510, sec. 1902. We have a general law on billiards and billiard tables which this ordinance clearly violates. 1 R. S. 1889, secs. 708, 709, 710, and 715. (10) The ruling of the court forcing defendant to make his peremptory challenge without the necessary number of qualified jurors, is in violation of section 4203, Revised Statutes, 1889, page 975. 2 R. S., sec. 6083; State v. Munn, 83 Mo. 589; Bank v. Andrew, 1 Mo., 174; Eberle v. Board, 11 Mo. 247; Fine v. School, 30 Mo. 166; Rose v. City, 49 Mo. 509; Fulmeiler v. City, 61 Mo. 479.

Lewis & Ramsay for respondent.

(1) Section 6 of the ordinance in question being complete in itself is valid, and it is immaterial in this case whether or not the other sections of the ordinance are valid. St. Louis v. Railroad, 89 Mo. 44; St. Louis v. Railroad, 14 Mo.App. 221; State v. Clark, 54 Mo. 17; In re Ah Tou, 45 F. 795; 1 Dillon on Mun. Corp. [3 Ed.], 421. (2) Appellant has preserved no evidence as to the wording of the enacting clause; but neither an enacting clause nor a title were necessary, providing the title was not misleading. City v. Foster, 52 Mo. 513; Cape Girardeau v. Riley, 52 Mo. 424; Tipton v. Norman, 72 Mo. 380; 17 Am. and Eng. Encyclopedia of Law, 245. No such points were made in the court below. Had the ordinance been a statute of the state it would be good as the entire subject-matter is fairly embraced in the title and certainly it is not misleading. City v. Tiefel, 42 Mo. 578; St. Louis v. Green, 70 Mo. 562; 17 Am. and Eng. Enclyclopedia of Law, 245, and notes; State ex rel. v. Co. Court, 102 Mo. 531; State v. Bennett, 102 Mo. 357. (3) Appellant's objection to the form of the complaint will be answered by referring to the complaint itself. It is not only elaborate, but is made throughout under oath fully complying with statute. R. S. 1889, sec. 1635. Besides, this question was not raised in the court below. Lawrence v. Monroe, 10 L. R. A. (Kan.) 520; State v. Allison, 44 Kan. (4) Appellant objects to the proof of the ordinance. It was read from the ordinance records of the city by the custodian after having identified them as such; further proof was not necessary until otherwise questioned by defendant. St. Louis v. Foster, 52 Mo. 513; Town v. Newman, 72 Mo. 380; Barr v. Auburn, 89 Ill. 361; 17 Am. and Eng. Encyclopedia of Law, 266; 1 Dillon on Mun. Corp. [3 Ed.], sec. 422. It was in regular form and appeared to have been passed and approved by the board (of aldermen) and signed by the president and mayor. The city here produced the journal and offered to prove its adoption, defendant objected, and the journal was withdrawn. Defendant could not take advantage of a want of evidence prevented by himself. Garst v. Good, 50 Mo.App. 149; Lee v. Hassett, 39 Mo.App. 67. (5) The fixing of an hour for closing saloons and billiard halls, if reasonable, will be sustained; and they will be sustained unless they clearly appear to be unreasonable. Neir v. Railroad, 12 Mo.App. 25; St. Louis v. Green, 7 Mo.App. 468; St. Louis v. Green, 70 Mo. 562; Lawrence v. Monroe, 10 L. R. A. (Kan.) 520, and note. Regulation of sale of cider sustained. Cites N. H. case where 10 o'clock closing was sustained. See 15 Am. and Eng. Encyclopedia of Law, 1188, and note, citing, among others, Smith v. Knoxville, 3 Head (Tenn.), 245; Plattville v. Bell, 43 Wis. 488; St. Louis v. Cafarata, 24 Mo. 94; Kansas City v. Cook, 38 Mo.App. 660; 1 Dillon on Mun. Corp. [3 Ed.], sec. 400.

OPINION

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, article 4, of the constitution of the state.

I. 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. St. Louis v. Railroad, 89 Mo. 44; State v. Clarke, 54 Mo. 17.

II. The constitutional provision that "no bill shall contain more than one subject, which shall be clearly expressed in its title," (sec. 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 limitations 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 Dillon on Mun. Corp., sec. 47.

Under ...