State ex rel. Wear v. Francis

• Decision Date: 07 May 1888
• Citation: 8 S.W. 1,95 Mo. 44
• Parties: The State ex rel. Wear et al. v. Francis et al., Police Commissioners of St. Louis, Appellants
• Court: Missouri Supreme Court

8 S.W. 1

95 Mo. 44

The State ex rel. Wear et al. v. Francis et al., Police Commissioners of St. Louis, Appellants

Supreme Court of Missouri

May 7, 1888

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed and remanded.

Leverett Bell for appellants.

(1) The law of 1857 is constitutional. It is the exercise of the right of local option, a familiar feature in American law and one the validity of which is not open to question. Locke's Appeal, 72 Pa. St. 491; Groesch v State, 42 Ind. 547; Cooley Const. Lim. [5 Ed.] 147-8. Moreover the law of 1857 has been before this court in two cases (State v. Winkelmeier, 35 Mo. 103, and State v. Binder, 38 Mo. 451), and has in each case been treated and considered by the court as a constitutional enactment. (2) Ordinance 4869, permitting the sale of beer on Sunday, was duly adopted in accordance with the law of 1857, and became and was a valid ordinance, and operated to repeal the statute forbidding the sale of fermented liquors on Sunday in St. Louis. State v. Binder, 38 Mo. 451; State v. Clark, 54 Mo. 17. The decision below, that there has never been any power in the corporate authorities of St. Louis to license the sale of wine and beer on Sunday, directly conflicts with State v. Binder, 38 Mo. 451. (3) Ordinance 5421 did not repeal or supersede ordinance 4869. Bishop on Written Laws, sec. 160. (4) The repeal of the act of 1857, by the act of March 28, 1887, did not revive the state law in force in 1857, prohibiting the sale of beer on Sunday. R. S., sec. 3148; State v. DeBar, 58 Mo. 395. (5) The amendment to the Revised Statutes, made in 1883, and known as the Downing law, did not repeal the law of 1857. A general statute, although inconsistent with the provisions of a prior local law, will not repeal the latter unless there is something in the general law that makes it manifest that the legislature contemplated and intended a repeal. State v. McDonald, 38 Mo. 529; State v. Fiala, 47 Mo. 320. The Downing law of 1883 is an amendatory, not an original, act. It changes an existing system, without creating a new one. It amends sections 5438, 5440, 5441, 5442, 5456 and 5464 of the General Statutes, and repeals section 5462, and enacts a new section in lieu thereof. The above sections are embraced in chapter 98 of the Revised Statutes. Section 5456 of the General Statutes, as it existed prior to the Downing law, forbade the sale of intoxicating liquors on Sunday. This provision was introduced into the statute in 1855. The amendment of the section by the Downing law was to prohibit such sale also on any general election day, in addition to Sunday. The legislature, in making this amendment in 1883, had no intention of changing the law with reference to the sale of liquors on Sunday in St. Louis. The revision of a law does not have the effect of making the revised law entirely original, so as to be construed as though none of its provisions had effect but from the date of the revised law, and when a former provision is contained in a revised act it operates only as a continuance of its existence, and not as an original act. St. Louis v. Alexander, 23 Mo. 509; Cape Girardeau v. Riley, 52 Mo. 424.

Henry T. Kent and Boyle, Adams & McKeighan for respondents.

(1) The act of 1857 was void and unconstitutional, as an attempt to delegate to the people of the corporate cities within the county of St. Louis the law-making power of the state, which is especially reserved for the legislative branch of the government, and cannot be delegated. Lammert v. Lidwell, 62 Mo. 188. (2) Admitting the act of 1857 to be valid and within the constitutional limits, the permission to the municipal authorities of St. Louis to sell fermented liquors on Sunday was never granted within the contemplation of law; that is to say, that, at the general election in April, 1858, there were some thirteen thousand votes polled, of which only seven thousand voted on the refreshment proposition, five thousand for and two thousand against. This was not a majority of the legal vote as required by law. The majority as construed by the Supreme Court meant a majority of all those voting at that election, and not those voting simply on the refreshment proposition. State v. Winkelmeyer, 35 Mo. 103; State ex rel. v. Brass-field, 67 Mo. 331; State ex rel. v. Sutterfield, 54 Mo. 591; State ex rel. v. Mayor, 73 Mo. 435. (3) Admitting, however, that legal permission was given to the city of St. Louis to pass ordinance number 4869, the twelfth section of which authorized the sale of fermented liquors on Sunday, said ordinance itself was repealed by ordinance number 5421, which latter ordinance was repealed in express terms by ordinance number 7624 1/2 of the revised ordinances of the city of St. Louis of 1871, page 525. State v. Rolla, 77 Mo. 126; State v. Smith, 14 Mo. 152; Leighton v. Walker, 9 N.H. 59; Towle v. Marrett, 3 Greenl. 22; United States v. Tyson, 11 Wall. 88; State ex rel. v. Hudson, 78 Mo. 302. (4) The record fully discloses a clear legal right in the relators, a corresponding duty upon the part of the defendants, and a want of adequate and specific remedy, except by way of a writ of mandamus, which is the proper remedy to pursue. High on Ex. Remedies, sec. 1; State ex rel. v. Garesche, 65 Mo. 489; State ex rel. v. Railroad, 86 Mo. 13; State ex rel. v. Laughlin, 75 Mo. 358; People ex rel. v. Bryne, 9 Abbott's New Cases, 137; People ex rel. v. Mayor, 59 How. Pr. 278.

Sherwood, J. Ray, J., absent. Norton, C. J., and Black, J., file concurring opinions.

OPINION

Sherwood, J.

This cause comes here on the appeal of those who were respondents in the circuit court, that court having awarded against them a peremptory writ. The only ground upon which this court can take jurisdiction of this cause is the fact that a constitutional question is involved therein, but this being the case carries with it, under recent constitutional amendments, the necessity of, and the jurisdiction for, determining the whole case.

I. Before going into the merits of the case, however, a preliminary question must first be determined; it is this, whether the relators, being merely private citizens, are proper parties to this proceeding. In State ex rel. v. Hoblitzelle, 85 Mo. 620, it was ruled that the relator being a contestant for an office, had a right to have an inspection of the poll-books relating to his election. But in the minority opinion it was declared that, where a public right is involved, and the object is to enforce a public duty, the people are regarded as the real party, and in such case the relator need not show any legal or special interest in the result, the fact that he is a citizen, and, as such, interested in the execution of the laws is the sesame which unlocks the gates of mandatory authority whenever an officer whose functions are merely ministerial, refuses to perform his office and thereby causes detriment to the public interest. In the subsequent case of State ex rel. v. Railroad, 86 Mo. 13, the position of the minority was fully endorsed, some of the same authorities being cited in its support. The great weight of judicial decision supports this view. This point must, therefore, be ruled in favor of the relators.

II. The act of 1857, now to be considered, is entitled, "An act confirming certain power to the citizens of St. Louis county," and is as follows:

"Section 1. That the corporate authorities of the different cities in the county of St. Louis shall have the power, whenever a majority of the legal voters of the respective cities in said county authorize them so to do, to grant permission for the opening of any establishment or establishments within the corporate limits of said cities for the sale of refreshments of any kind (distilled liquors excepted) on any day in the week.

"Section 2. Any person, who shall on a Sunday sell or offer for sale, within the corporate limits of said cities, any distilled liquors, or any composition of which distilled liquors form a part, shall be punished by a fine of not less than ten, nor more than fifty dollars.

"Section 3. The provisions of the first section of this act shall not be construed as authorizing the sale of ardent spirits on any day mentioned, except as now by law allowed.

"Section 4. All acts and parts of acts conflicting with the provisions of this act are hereby repealed. This act to take effect from its passage."

Approved March 4, 1857. Laws 1856-7, p. 673.

It is claimed that this act is unconstitutional, as being a delegation of legislative power. This contention cannot prevail, for the reason that the power which the legislature confers upon municipal corporations when granting them charters, with authority to pass ordinances, etc., for local self-government, has never been considered a delegation of legislative power, and does not make an exception to the rule that such legislative power, conferred upon the General Assembly, is to be exercised by that body alone and not to be delegated to others. State v. Field, 17 Mo. 529; 1 Dill. Mun. Corp., sec. 308 and cas. cit.; Metcalf v. City, 11 Mo. 102. And whenever the legislature has the power, originally, to confer upon a municipality authority to enact ordinances and by-laws, such power embraces within its scope the right, by subsequent legislation, to enlarge the chartered powers of a municipality, by enactments similar to those specified in the act under consideration, and to prescribe the methods in which such additional powers shall be exercised. The power being conceded, the mere method of its exercise becomes immaterial. State v. Cooke , 24 Minn. 247; State v. Noyes, 30 N.H. 279; Commonwealth v. Bennett, 108 Mass. 27.

Of course, these remarks are subject to those...