Ex Parte Corvey
| Citation | 287 S.W. 879 |
| Decision Date | 02 November 1926 |
| Docket Number | No. 19737.,19737. |
| Parties | Ex parte CORVEY. |
| Court | Court of Appeal of Missouri (US) |
John E. Corvey, of St. Louis, pro se.
Julius T. Muench, Oliver Senti, and George Fittge, all of St. Louis, for respondent.
Proceedings in habeas corpus Petitioner, John E. Corvey, was convicted in the city court of the city of St. Louis of a violation of a parking ordinance of said city. A fine was assessed, and, upon a refusal to pay the fine, petitioner was committed to the custody of the respondent, William E. Duffy, city marshal. This writ of habeas corpus was then sued out for the petitioner's release. Respondent duly filed his return, to which petitioner has demurred.
From the record thus made we have this: Petitioner was arrested on May 15, 1926, and was tried and convicted July 8, 1926, for a violation of Ordinance No. 34554, which forbids the parking of vehicles during specified hours of the day in the district bounded by Carr, Market, Fourth, and Twelfth streets in said city of St. Louis, and the ordinance provides a penalty.
Petitioner insists that the ordinance is void, because one of the formal requirements in the passage of same has not been complied with, to wit, the approval of the bill during the mayor's term of office and indorsing the correct date of such approval. The progress of the passage of the bill is regular; at least to the point of approval by the mayor. The bill was properly passed by the board of aldermen January 3, 1926, and on that day same was forwarded to the mayor for his approval or disapproval. The original bill bears the indorsement that it reached the mayor's office on the same day that it was transmitted by the board of aldermen, and again, that it was filed with the register on the same day with the mayor's approval. However, under the signature of the mayor setting forth his approval, the date January 23, 1925, is written instead of the obviously correct date of January 23, 1926. It is conceded that on January 23, 1925, Victor J. Miller was not the mayor of the city of St. Louis, but was mayor when he approved the ordinance on January 23, 1926. This error in the year date is the main ground relied upon by petitioner for release from the custody of the respondent.
The charter of the city of St. Louis, article 4, section 17, is as follows:
etc. (The ordinance before us is an emergency measure.)
Section 21 of article 4 of the charter provides that every ordinance when passed shall be immediately sent to the register, where same shall be numbered, filed, preserved, and published.
We have examined the whole charter carefully, and nowhere do we find that the mayor is required to affix the date of his approval of an ordinance. Article 4, section 17, of the charter plainly provides that a bill acted upon by the board of aldermen, and forwarded to the mayor, should be sent back to the board of aldermen (or register) either with his approval or disapproval within 20 days, but, should he not send it back within such time, with his disapproval thereon, "such shall constitute approval thereof by the mayor." In that event, then the bill becomes effective as an ordinance in the same manner as though it had been approved by him. Obviously, if the mayor approved this ordinance within the specified time, and returned same, it became a law; if he returned same neither approved nor vetoed, it became a law. Axiomatically, if a mistake in writing 1925 instead of 1926 destroys the effect of affirmative approval, then, under the charter, the bill not being approved and not vetoed; and so returned, it became an ordinance after 20 days. If we consider the ordinance from the view of its having been given effect by the approval of the mayor, its validity does not depend upon any recital thereon as to the date of the approval, but depends upon its having been approved and returned within 20 days. The worst that can be said of this mistake in giving the year as 1925 instead of 1926 is that there was no approval at all by the mayor, but being returned without any action of the mayor upon it. This leaves us the situation that same became an ordinance under the charter, notwithstanding. This mistake in date cannot be construed to make the express approval of the mayor a veto of the ordinance. Furthermore, the ordinance does not depend upon the date of approval; the charter requires that it shall be signed or vetoed within 20 days. This was done, in that it was sent to the register with the mayor's attempted approval at least within that time. And, as we have already said, the charter nowhere requires that the mayor shall give the date of his approval.
The petitioner relies upon the case of Ball v. Fagg, 67 Mo. 481, to the effect that the date of the mayor's approval of an ordinance as attested by the city clerk cannot be contradicted by parol evidence. That case followed the case of Railroad v. Governor, 23 Mo. 353, 66 Am. Dec. 673, which has been overruled in the case of State ex rel. v. Mead, 71 Mo. 266.
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