Ex parte Caldwell

• Decision Date: 16 March 1897
• Citation: 39 S.W. 761,138 Mo. 233
• Parties: Ex Parte Caldwell
• Court: Missouri Supreme Court

39 S.W. 761

138 Mo. 233

Ex Parte Caldwell

Supreme Court of Missouri

March 16, 1897

Writ denied.

Edmonston & Cullen for petitioner.

(1) Any ordinance that violates the express provisions of the city's charter is void. By the letter of section 122 (Laws of 1893, p. 100) the city has power to affix the "same penalty and no other for the punishment of such offense," etc. The punishment prescribed by the ordinance is different; therefore, void. Laws of 1893, sec 122, p. 100; R. S. 1889, sec. 1902; Warrensburg v McHugh, 122 Mo. 649; Johnson v. Daw, 53 Mo.App 373; Mayor of New York v. Ordrenan, 12 Johns, 122; 1 Dillon Mun. Corp. [4 Ed.], secs. 336, 337, 339, 340, 341 343, and 344. (2) It is true generally that cities have a discretion as to the manner in which the powers conferred shall be exercised, but they have no discretion when expressly restricted by charter. In this case the charter expressly restricts them by saying they shall have authority to inflict the same punishment and no other. They are expressly prohibited from prescribing any other punishment than that prescribed by statute. 1 Dillon Mun. Corp. [4 Ed.], secs. 89, 317, 319; Town of Paris v. Graham, 33 Mo. 94; Quinette v. City of St. Louis, 76 Mo. 402; Carr v. City of St. Louis, 9 Mo. 191; Knox City v. Thompson, 19 Mo.App. 523. (3) The said ordinance being in conflict with the express provisions of the charter the city had no authority to proceed against petitioner. The power of a municipal corporation to act is confined exclusively to the limits prescribed by the charter and such ordinances as are passed in conformity thereto. Leach v. Cargill, 60 Mo. 316; Kiley v. Oppenheimer, 55 Mo. 374; State v. Railroad, 75 Mo. 210. (4) An ordinance passed by a municipal corporation which imposes a greater penalty for its violation than is authorized by charter is void. Leland v. Long Branch, 42 N. J. L. 375; Petersburg v. Metzker, 21 Ill. 205; State v. Bringier, 8 So. Rep. 298. (5) There is good reason for such requirement. A prosecution by a city is a bar to a prosecution for the same offense by the State. State v. Simonds, 3 Mo. 414; State v. Cowan, 29 Mo. 331; State v. Thornton, 37 Mo. 361; State v. Freeman, 56 Mo.App. 580.

E. S. Gantt for respondent.

(1) It could not have been the intention of the legislature to give cities of the third class power to inflict greater punishment than cities of the first and second classes. See section 1029 and subdivisions 10 and 14 under said section, section 1255 and subdivision 37 under said section, R. S. 1889, also section 122, Laws 1893, page 100. St. Joseph v. Landis, 54 Mo.App. 315; Fosburg v. Rogers, 114 Mo. 122; State v. McLain, 49 Mo.App. 398. (2) The construction placed upon this statute (sec. 122, Laws 1893, p. 100) by the petitioner would give cities of the third class authority to fine an offender as much as $ 1,000 in many instances (R. S. 1889, sec. 3811), while cities of the first and second classes are limited to a fine of $ 500. (3) Section 85, Laws 1893, page 82, authorizes cities of the third class to punish any person operating a gambling device, and if, under section 122 (Laws 1893, p. 100), the city must affix the same punishment, as contended by petitioner, that the statute affixes, then it is precluded from restraining and preventing such an offense, for under the statute it is a felony. See section 3808, Revised Statutes 1889. If petitioner's contention be correct, then the city of Mexico must either permit the operation of such gambling devices within its limits or decree that persons convicted of such offenses in the police court shall by said court be adjudged to serve a term in the State penitentiary. There is neither public policy nor good sense in either proposition. (4) The ordinance in question is in no way repugnant to the spirit and policy of the State statute relating to the same subject-matter. They are in substantial harmony. R. S. 1889, sec. 1902; Kansas City v. Hallett, 59 Mo.App. 161; St. Joseph v. Vesper, 59 Mo.App. 459; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. Schoenbusch, 95 Mo. 618; Ex parte Kiburg, 10 Mo.App. 442; Rogers v. Jones, 1 Wend. 261; Ex parte Taylor, 87 Cal. 91. (5) The violation of the ordinance under consideration is no crime, and a prosecution for the violation of said ordinance is, therefore, no bar to a prosecution by the State. City of Kansas v. Muhlback, 68 Mo. 638; City of Kansas v. Clark, 68 Mo. 588; St. Louis v. Knox, 74 Mo. 81; Ex parte Hollwedell, 74 Mo. 401; Kansas City v. Neal, 122 Mo. 234; De Soto v. Brown, 44 Mo.App. 152; St. Louis v. Schoenbusch, 95 Mo. 618; St. Louis v. Vert, 84 Mo. 204. (6) If a prosecution by the city was a bar to a prosecution by the State, it would make no difference that the punishments were respectively different in amount. It would still be a bar. The converse would also be true; a prosecution by the State would bar the city. (7) The evident intention of the legislature was to compel cities of the third class to affix the same punishment in kind, not in amount, and to prevent the collection of fines by forfeiture, etc. (8) Laws must be construed so as to harmonize, if possible; but where two intepretations are possible, that should be followed which is recommended by the most beneficial reasons. Kane v. Railroad, 112 Mo. 34. (9) The consequences of a proposed intepretation may be considered in determining the probable intention in the enactment of the law. Kane v. Railroad, supra. (10) The intent of the legislature is to be gathered from every part and section of the statute. Pitt v. Bishop, 53 Mo.App. 600. (11) When the language of a statute leads to manifest contradictions of the apparent purpose of the enactment, a construction may be given it which modifies the literal meaning of the words. Cole v. Skrainka, 105 Mo. 303; St. Joseph v. Landis, supra; St. Louis v. Lane, 110 Mo. 254.

OPINION

In Banc.

Habeas Corpus.

Burgess J.

The petitioner was on the fifteenth day of January, 1896, convicted in the police court of the city of Mexico, Missouri, of violating an ordinance of said city prohibiting the carrying of concealed weapons, and his punishment fixed at a fine of $ 15, in default of the payment of which he was committed to the custody of John Lane, the city marshal, who delivered him into the custody of David Owens, the street commissioner of said city, in pursuance of its ordinance, where he has remained ever since.

On the third day of February, 1897, the petitioner sued out from this court the writ of habeas corpus, for his release from custody, upon the ground of the invalidity of the ordinance under which he was convicted, and the judgment rendered against him.

No question is made as to the jurisdiction of the court, nor as to the validity of the judgment except in so far as they depend upon the validity of the ordinances of the city.

Mexico is a city of the third class, organized as such in the spring of 1892 under the general laws of the State. As such city it has an ordinance establishing a police court and defining its jurisdiction and powers, which is in words and figures as follows:

"Section 1. Police court established. A court is hereby established in the city of Mexico, to be known as a police court, which shall be held in a suitable room or office, to be provided and furnished by the council. Said court shall be open for transaction of business during every week day of the year, and shall have exclusive original jurisdiction to hear and determine all violations of and offenses against the ordinances of this city, including offenses heretofore specified in any ordinance of this city as being within the jurisdiction of the city recorder's court, and such other jurisdiction as shall be conferred by the charter governing this city and the laws of the State. Said court is hereby empowered and authorized to inflict punishment upon any person violating the provisions of said ordinances by a fine not exceeding one hundred dollars, and by imprisonment not exceeding three months, or by both such fine and imprisonment, as may be provided by ordinance and as may be just for any such offense, recoverable with costs of suit, together with judgment of imprisonment until such fine and costs are paid or satisfied."

In 1893 the General Assembly passed a law repealing all former laws with respect to cities of the third class (Acts of 1893, p. 65), approved April 10, 1893, by which cities of the third class have since that time been governed. The sections of the act which have any bearing upon the question involved in this case are as follows:

"Sec 41. The police judge shall be a conservator of the peace, and shall have exclusive original jurisdiction to hear and determine all offenses against the ordinances of the city, etc.

"Sec. 93. The council may prohibit and punish for the carrying of concealed deadly weapons, and may arrest and imprison, fine or set to work all vagrants found within the city.

"Sec 122. For any purpose maintained in the preceding sections, the council shall have power to enact and make all necessary ordinances, rules and regulations; and they shall also have power to enact and make all such ordinances and rules, not inconsistent with the laws of the State, as may be expedient for maintaining the peace and good government and welfare of the city and its trade and commerce; and all ordinances may be enforced by prescribing and inflicting upon its inhabitants, or other persons violating the same, such fine not exceeding one...