Ex parte Cavanaugh v. Gerk

• Citation: 280 S.W. 51,313 Mo. 375
• Parties: Ex Parte EDWARD M. CAVANAUGH, Petitioner, v. JOHN A. GERK, Chief of Police of City of St. Louis
• Decision Date: 15 March 1926
• Court: United States State Supreme Court of Missouri

280 S.W. 51

313 Mo. 375

Ex Parte EDWARD M. CAVANAUGH, Petitioner, v. JOHN A. GERK, Chief of Police of City of St. Louis

Supreme Court of Missouri

March 15, 1926

Petitioner discharged.

Gustav Vahlkamp for petitioner.

(1) Municipalities are given power by the State to establish one-way streets and make other traffic regulations to meet their needs and requirements by ordinance only. Laws 1921 (Ex. Sess.) p. 100. (2) Ministerial powers may be delegated by a city, but legislative powers cannot. St. Louis v Russell, 116 Mo. 248; St. Louis v. Allen, 275 Mo. 501; Matthews v. City of Alexandria, 68 Mo. 115 30 Am. Rep. 776. A law that vests the power in an official to make regulations, in his discretion, governing the use of city streets, is an unconstitutional delegation of the legislative powers. Merchants Exchange v. Knott, 212 Mo. 616. (3) The legislative power of the city of St. Louis is vested in the Board of Aldermen, and where the charter gives the power to a board of aldermen that power cannot be delegated to another person or body. Charter of St. Louis Art. 4, sec. 1; Thomas v. Boonville, 61 Mo. 282.

Julius T. Muench and Charles J. Dolan for respondent; Arthur H. Bader of counsel.

(1) The city has the power under the provisions of its charter (a) to regulate the use of its streets and sidewalks, (b) to do all things whatsoever expedient for promoting or maintaining the comfort, peace, education, morals, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants. Charter of St. Louis (a) Art. 1, sec. 1, cl. 14 and (b) Art. 1, sec. 1, cl. 33; Sluder v. Transit Co., 189 Mo. 107; St. Louis v. Kellman, 243 S.W. 134; Haeussler Inv. Co. v. Bates, 267 S.W. 635. (2) Ordinances No. 32846 and 32926, known as the "Traffic Ordinance" and Section 6 thereof as amended by Ordinance 33446, creating the "Traffic Council" and vesting it with power and authority to promulgate rules and regulations governing the use of the streets of the city are ordinances enacted by virtue of the police power vested in the municipality, and are police regulations, merely prescribing who shall exercise such police power. They do not delegate legislative powers. Haller v. St. Louis, 176 Mo. 606; St. Louis v. Kellmann, 243 S.W. 134; Phelan v. Paving Co., 227 Mo. 666; 12 C. J. 840; Veneman v. Jones, 118 Ind. 41; Commonwealth v. Robeson, 5 Cush. 438; Commonwealth v. Stoddard, 2 Cush. 562. (3) The Traffic Council so created and vested with the powers under the ordinance is an administrative body, the agent of the Board of Aldermen to ascertain and declare the zone within which the ordinance which expresses the legislative will shall take effect. United States v. Casey, 247 F. 362; United States v. Ormsbee, 74 F. 207; Field v. Clark, 143 U.S. 649; State v. Colbert, 201 S.W. 52; 12 C. J. 845 (notes); Milwaukee v. State Railroad Comm., 162 Wis. 127.

OPINION

White, J.

The petitioner alleges that he is unlawfully restrained of his liberty by the respondent in the city of St. Louis. By agreement of the parties, service of the writ and the production of the body of the petitioner were waived. The respondent filed his return setting up the reasons for holding the petitioner in custody.

There is no disagreement as to the facts in the case. The petitioner was arrested for driving his automobile in the city of St. Louis in disregard of an automatic-stop signal at Fourteenth and Locust streets, and for going in the wrong direction on St. Charles Street, a one-way street.

Ordinance No. 32846, creating the traffic council of the city of St. Louis, has the following provisions:

"Section One. The President of the Board of Police Commissioners, the Director of Streets and Sewers and the Chairman of the Legislative Committee of the Board of Aldermen shall constitute a traffic council whose function it shall be to codify existing traffic ordinances, to harmonize the traffic ordinances of the city with the State law, to propose changes in the ordinances regulating traffic as the needs of the city may require, and to advise the Board of Aldermen regarding proposed changes."

Section Two provides for the organization and places of meeting of the traffic council. Section Three is as follows:

"Section Three. The recommendations of the traffic council shall be embodied in the form of bills, and shall be introduced in the Board of Aldermen by the Chairman of the Legislative Committee, to be considered in the same manner as any other bills. No recommendation of the traffic council shall have any binding force until it shall have been passed in the regular way by the Board of Aldermen and approved by the Mayor."

Ordinance No. 23926 contains Section Six, defining the powers of the traffic council, which in part is as follows:

"Section Six. Powers of Traffic Council.

"(A) Powers in General. -- The traffic council as created by ordinance number thirty-two thousand, eight hundred and forty-six, approved February twenty-eighth, nineteen hundred and twenty-four, shall have power by rules and regulations adopted by it to:

"(One) Designate the streets or parts of streets upon which there shall be no parking of vehicles or upon which there shall be parking for a limited time.

"(Two) Exclude or restrict parking on designated streets during certain hours.

"(Three) Permit angle parking in designated places.

"(Four) Establish one-way streets.

"(Five) Cause limit lines to be marked upon pavements and sidewalks for the direction of pedestrians and others.

"(Six) Prohibit left-hand turns by vehicles at street corners.

"(Seven) Establish and cause to be erected traffic signals and signs and parking and no-parking signs at such places as may be designated by it, and such signals and signs so established shall be recognized and the directions followed by all operators of vehicles."

Other regulations similar in character follow:

"(b) The rules and regulations established by the traffic council, as hereinbefore provided, shall be published in the City Journal, and upon their publication therein they shall become effective and shall govern the regulation of traffic for a period of ninety days after the date of publication, within which time there shall be introduced in the Board of Aldermen a bill embodying such rules and regulations, and such rules and regulations shall continue in full force and effect during such time as such bill shall be pending in the Board of Aldermen: Provided, however, that if no bill embodying such rules and regulations shall have been introduced in the Board of Aldermen within the period of ninety days after the publication of such rules and regulations, as hereinbefore provided, or if any such bill shall fail of final passage in the Board of Aldermen, then such rules and regulations shall cease to be in force and effect."

The traffic council caused to be erected at the intersection of Fourteenth and Locust streets automatic traffic signals, which display at intervals the words "Go," "Wait," "No Left Turn" and "Stop." The signals were synchronized so as to regulate the traffic at that point. The traffic council also promulgated, September 15, 1925, this regulation: "St. Charles Street from Third Street to Fourteenth Street shall be a one-way street and for west-bound traffic only." These regulations were published as required by ordinance.

On December 14, 1925, the petitioner operated his motor vehicle east on Locust Street, across Fourteenth Street, disregarding the stop-signal at that point. He continued east to Thirteenth Street, then turned north on Thirteenth Street to St. Charles Street, and after turning east on St. Charles Street he was charged with driving east instead of west. For these two offenses he was arrested.

No bill for an ordinance, provided for by Section Three of Ordinance No. 32846, and by clause (b) of Section Six in Ordinance No. 32926, was passed or introduced in the Board of Aldermen.

I. The petitioner asserts that the traffic council had no right to promulgate traffic rules, nor to determine the territory to which they should apply; that only the aldermen of the city of St. Louis have such authority, which they could not delegate to an administrative body like the traffic council. The question for consideration is whether the authority, which the Board of Aldermen attempted to vest in the council by Ordinance No. 32926, is a delegation of the legislative authority.

No doubt the city of St. Louis possesses legislative power derived directly from the Constitution, as claimed by the respondent, citing Haeussler Inv. Co. v. Bates, 267 S.W. l. c. 637. As a police regulation, the city could provide for the safety and convenience of its inhabitants, by ordinance, define the parking places, establish...