State v. Butler

• Decision Date: 09 December 1903
• Citation: 178 Mo. 272,77 S.W. 560
• Parties: STATE v. BUTLER.
• Court: Missouri Supreme Court

77 S.W. 560

178 Mo. 272

STATE v. BUTLER.

Supreme Court of Missouri, Division No. 2.

December 9, 1903.

CRIMINAL LAW—ATTEMPT TO BRIBE CITY OFFICER—STATUTE—MUNICIPAL CORPORATIONS —CHARTER—ORDINANCE—REMOVAL OF GARBAGE—PUBLIC WORK—POWER TO LET CONTRACT—INDICTMENT—BURDEN OF PROOF— VERDICT.

1. Under St. Louis City Charter, art. 6, § 27, providing that the assembly shall have no power directly to contract for any public work contemplated by the charter, and requiring in all cases, except in case of emergency work, the board of public improvements to let out all such contracts to the lowest responsible bidder, and adding, "any other mode of letting out or contracting for work shall be held as illegal and void," an ordinance placing power in the board of health to contract for removal and disposal of the city garbage is a nullity, such contract being for a public work.

2. St. Louis City Charter, art. 3, § 26, cl. 6, grants the city assembly power to pass ordinances to prevent the introduction and spread of contagious diseases, and to secure the general health of the inhabitants by any measure necessary. Another clause authorizes the assembly to pass all such ordinances as may be expedient in maintaining the good government, health, and welfare of the city. Held, that an ordinance placing power in the board of health to contract for the sanitary disposal of the city's garbage is a nullity, in view of section 27, granting power to the board of public improvements only to let contracts for public work, and declaring contracts let in any other mode illegal and void.

3. The rule that when the charter of a municipal corporation authorizes something to be done, and an ordinance undertakes to carry out such power, courts lean towards a construction of the ordinance which will uphold it, has no application where the question is as to the power granted in the charter to pass the ordinance.

4. If there is a fair, reasonable doubt concerning the existence of power in the charter of a city, it will be resolved against the city, and the exercise of the power denied.

5. The absence of power in a municipal assembly to pass an ordinance can never be supplied by construction or acquiescence.

6. An offer of money to a member of the board of health to influence his vote on the letting of a contract for the removal of the city's garbage does not constitute an attempt to bribe, under Rev. St. 1899, § 2084, defining bribery, and section 2089, declaring that every person who shall offer to give money to any public officer of a city to influence his vote on "any question which may by law be brought before him in his official capacity" shall be guilty of an attempt to bribe, where the board of which the officer was a member had no power to let the contract concerning which the offer of money was made to influence his vote in favor of a certain bidder.

7. Under Rev. St. 1899, § 2089, declaring that every person who shall offer to give money to any city officer to influence his vote on any question which may by law be brought before him shall be guilty of an attempt to bribe, a law effective at the time of the offer to bribe is meant; and the completion of the offense cannot be made to depend on future action of the lawmakers, who might possibly some time in the future enact a law which would require the officer to act on questions which may come before him, since this would make the offense depend on a contingency which might never happen.

8. A statute defining a criminal offense must be strictly construed.

9. An indictment for attempted bribery of a public officer cannot be predicated on Rev. St. 1899, § 2089, declaring every person who shall offer to give money to any public officer to influence his vote on any question which may "by law be brought before him in his official capacity" guilty of an attempt to bribe, where there is no law authorizing the question on which he is sought to be influenced by bribery to be brought before him.

10. In a prosecution for attempt to bribe a public official, under Rev. St. 1899, § 2089, defining the offense, and making it a material element thereof that the offer to bribe shall be on a question which may by law be brought before him in his official capacity, the burden is on the state to prove beyond a reasonable doubt that the offer to bribe was made after the ordinance on which the indictment was predicated went into effect.

11. When, in a prosecution for attempt to bribe a city officer, under Rev. St. 1899, § 2089, defining the offense, and making it a material element thereof that the offer to bribe shall be on a question which may by law be brought before him in his official capacity, a verdict of guilty cannot be sustained on proof by the state that the offer was made on or before the day preceding that on which the law became effective.

12. A city ordinance is not, as a matter of law, effective until approved by the mayor.

13. A prosecution for attempted bribery of a city officer, under Rev. St. 1899, § 2089, defining the offense, and making it a material element thereof that the offer to bribe shall be on a question which may by law be brought before him in his official capacity, was predicated on the offer having been made to influence his vote on a contract to be let under a city ordinance. Held, that as the court charged the jury that they were not required to find that the alleged offer to bribe was made after there was a valid municipal ordinance in force, by which the matter might be brought before the officer in his official capacity, in order to convict, a claim by the state that the jury found as a fact that the offer was made after the approval of the ordinance on which the indictment was predicated is without merit.

Appeal from Circuit Court, Boone County; Jno. A. Hockaday, Judge.

Edward Butler was convicted of attempting to bribe a city officer, and appeals. Reversed, and defendant discharged.

T. J. Rowe and W. M. Williams, for appellant. E. C. Crow and Jos. W. Folk, for the State.

FOX, J.

The indictment in this cause was filed in the circuit court of the city of St. Louis on April 5, 1902. Judge O'Neill Ryan granted the defendant a change of venue from the Eighth Judicial Circuit, and transferred the case to the circuit court of Boone county, where it came on for trial on November 10, 1902. The indictment charged the defendant with attempting to bribe Dr. Henry N. Chapman, a member of the board of health of St. Louis, by offering him $2,500 if he would vote, as a member of said board, to accept the bid of the St. Louis Sanitary Company for the reduction of the garbage of the city. Omitting caption, the indictment is as follows: "The grand jurors of the state of Missouri, within and for the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oath present: That on or about the twenty-ninth day of September in the year one thousand nine hundred and one the city of St. Louis aforesaid was a municipal corporation of and in the said state of Missouri. That by the provisions of its charter the legislative power of said city was vested in a council and a house of delegates, styled the `Municipal Assembly of the City of St. Louis,' and that every ordinance passed by a majority vote of the members of said council and said house of delegates, respectively, and approved by the mayor of said city, became and was an ordinance and law of said city, ten days after said approval, unless an emergency was declared to exist by a two-thirds vote of the members of said council and house of delegates, respectively, in which event such ordinance became and was a law of said city from and after the date of such approval by said mayor. That on the day and year aforesaid there was an ordinance and law of said city which had been theretofore duly passed by a majority vote of the members of said council and of said house of delegates respectively, so constituting the municipal assembly of said city as aforesaid, known and designated as `City Ordinance Number 20,476,' entitled `An ordinance for the protection and preservation of the public health by providing for the sanitary removal of all slops, offal, garbage, vegetable matter, and animal matter of the city of St. Louis, by a process known as the Merz process,' wherein it was ordained by the said municipal assembly of said city, among other things, that the board of health of said city was thereby authorized and directed by a vote of a majority of its members to provide for and enter into a contract for the sanitary disposal of all slops, offal, garbage, vegetable matter, and animal matter of the said city by the Merz process. That said contract should be let within fifteen days from the approval of said ordinance. That within fifteen days from the approval of said ordinance the said board of health should, under the supervision of the register of said city, cause to be inserted for five days, in the newspapers doing the city printing, an advertisement asking for sealed proposals for the disposal of all slops, offal, garbage, vegetable matter, and animal matter of said city by the Merz process, in accordance with the provisions of said ordinance. That the contract aforesaid should be awarded by the said board of health to the best bidder therefor, and that the said board of health should have the right to reject any and all bids. That in the body of said ordinance an emergency was expressed and declared to exist, and that the said municipal assembly, by a vote of two-thirds of all the members elected to each house thereof, directed that said ordinance should take effect and be in force from and after its approval by the mayor of said city, on the 17th day of September, A. D. 1901, and that said ordinance then and thereafter, under the provisions of the charter of said city as aforesaid, became and was a law of said city of St. Louis. That by the provisions of the charter of said city there had been...