State v. Clarke

Decision Date31 October 1873
PartiesSTATE OF MISSOURI, Respondent, v. KATE CLARKE, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Criminal Correction.

Lackland, Martin & Lackland, for Appellant.

I. The Charter of the City of St. Louis gives the City Council power by ordinance, to “regulate or suppress” bawdy or disorderly houses, houses of ill fame or assignation.

It is evident, that the Legislature intended to give the City Council power to control bawdy houses. And this power includes the idea of permissive existence.

Under the power to “regulate commerce,” Congress has full and entire control of the whole subject as a unit. The power not only includes properly the subject of commerce, but also all the necessary vehicles and appliances necessary to carry it on. (2 Sto, Const., 510, § 1061; Gibbons vs. Ogden, 9 Wheat., 1; Brown vs. Maryland, 12 Wheat., 419.)

It is true, that by the general law, the keeping of a bawdy house is prohibited, and the charter provision amounts to a repeal of the general State law, so far as the City of St. Louis is concerned. (State vs. Binder, 38 Mo., 450.)

In the case of Binder, the right of the city to exercise the power depended upon a condition of a majority vote of the legal voters. In the present case, if the power be contained in the word “regulate,” the city is invested with the power without condition. With this exception, the cases appear to be the same in principle.

The case of the City of St. Louis vs. Laughlin, does not apply here. The question decided in that case was, whether the general clause giving power to said city to tax “all other business, trades, avocations or professions whatsoever” included lawyers.

In this grant of power, which we are considering, bawdy houses, assignation houses, and houses of ill fame, are expressly named.

J. G. Lodge, for Appellant.

I. The ordinance in question undoubtedly permits and authorizes bawdy houses to be kept in this city under certain restrictions.

The first question to be considered then, is, whether the city charter authorizes the City Council to pass such an ordinance as Ch. XIV. of the ordinances of the city of St. Louis, or so much of said ordinance as, under certain restrictions, permitted defendant to keep said house.

The term “to regulate” as used in this charter, in every place where it is found in this section, is of broad and uniform significance, and means nothing else than to prescribe the rule by which the subject to which it relates is governed.

And in the law generally it has this significance. Where the term is used in the Constitution of the United States, it has this meaning. Just such authority with reference to bawdy houses was never conferred by any previous charter.

It has been laid down as a rule of interpretation of statutes, since the days of Lord Coke, that in order to arrive at the meaning of the act under consideration, we must consider what the law was before the mischief, the remedy, and the true reason for it, which he says is the very lock and key to set open the windows of the statute. (1 Bish. C. L., 566.)

The first charter of St. Louis, where any authority was expressly given on this subject, was that of 1822, when St. Louis was yet called a town. And in that charter the only power given was “to restrain and prohibit.” (R. O. 1866, p. 4, § 12.)

In 1835, the charter was revised and amended by the Legislature, and the same language was held. (R. O. 1866, p. 48, § 32.)

In the year 1839, a new act of incorporation was passed, in which the authority given, with reference to houses of prostitution, is to tax and prohibit. The exact words are: “To tax, restrain, prohibit and suppress tippling houses, dramshops, gaming and gambling houses, and bawdy and other disorderly houses.” (R. O. 1866, p. 56; § 1, sub-sec. 23.)

And again in 1841, upon the amendment of the charter, the same language was held as in the charter of 1839.

In 1843, an act passed the State Legislature and became a law, under which the only authority given to the city over bawdy houses was to suppress them. (R. O. 1866, p. 75, (Art. 3, § 2, sub-sec. 22.) And the same is true of the revision and amendment of the charter in the years of 1851 and 1867. But in the year 1870, the present charter of the city of St. Louis was adopted, and in it the Legislature gives the city power “to regulate” or suppress bawdy-houses. This is a marked change.

Now if we apply our rule of interpretation, much light is let in as to the evident intent of the Legislature in making this change. From the time when St. Louis was a small town, (1843,) and until 1870, a uniform system of forcible repression only had been authorized; but in 1870, when the city had acquired such importance and dimensions, and when all legislation in regard to it was of such vital interest, a radical change concerning this whole subject was made, if we are to take language in its usual and legal sense.

The term “to regulate,” as used in this charter with reference to bawdy houses, means to prescribe the rule by which they are to be governed. Whenever this word is used in the charter, it has this meaning, and it cannot have one meaning in all other parts of the charter (and it is a word of frequent occurrence), and a different meaning in this solitary instance, as applied to houses of ill-fame. The popular and usual meaning of the word is the same as above defined. Webster's definition is: “Regulate: to adjust by rule; method or established mode; to direct by rule or restriction; to subject to government, principles or laws.”“Regulation: a rule or order prescribed for management or government.” Worcester's definition is substantially the same.

The term regulate has also received judicial notice. And the Supreme Court of the United States, in interpreting that clause of the national constitution, which says: Congress shall have power to regulate commerce,” &c., says, that the word regulate, as used in that connection, means to prescribe the rule, by which commerce is to be governed. (9 Wheat., 146; Sto. Com. Con., § 1061; Dwar. Stat., 274 and n.)

II. But it is said, that the general words, with which article 3 of the charter of St. Louis is headed, are to govern this

term, “to regulate,” in a subsequent special clause of said article. The general words are as follows: “The Mayor and City Council of the City of St. Louis shall have power within the city, by ordinance not inconsistent with any law of the State,” to pass ordinances, &c.

Now, this same general clause, which I have just read, was in the previous charter of St. Louis--that is of 1867. But this word “regulate,” with reference to bawdy houses, was not in that charter. The only power therein given (in the charter of 1867) was to suppress.

The Legislature, in passing the city charter of 1870, must be presumed to have had these general words in mind, when they amended the charter by introducing the special clause, giving the City Council power to regulate, as well as to suppress, bawdy houses, &c.

If the Legislature did not intend to give the city the power over this subject, that it did over every other subject which it gave the city power to regulate, why did it not leave the law as it was?

The city had power under the charter of 1867 to “suppress” bawdy houses. And can it be conceived, while we are seeking for the legislative intent of this matter, that the Legislature amended the charter of 1867, in this marked and emphatic manner, to still give the power only to suppress these houses, a power which the city had before?

III. The general words in one clause of a statute may be restrained by the particular words in a subsequent clause of the same statute, where a general intention is expressed, and the act also expresses a particular intention, incompatible with the general intention. The particular intention is to be considered in the nature of an exception. (Dwar. Stat., 110, 117, 160, 273; Sedg. Con. & Stat. L., 423, 61, 133; Rex vs. Archb. of Armagh, 8 Mod., 5; Churchill vs. Crease, 2 Moore & P., 415; 5 Bing., 180; Bishop Stat. Crimes, 126, and n.; State vs. Binder, 38 Mo., 450; State vs. Macon Co. Court, 41 Mo., 453; 47 Mo., 146.)

This interpretation will give effect to this special clause of the charter and reference to houses of ill-fame, and it cannot be denied, that it is a special clause, and that it is subsequent to the general words at the beginning of Article 3 of the charter.

And the said charter ordinance being irreconcilably inconsistent with, and repugnant to, the State law; and the charter, being a special act of the Legislature, and passed subsequently to the State law, we claim, repeals the State law by implication. (51 Mo., 420; Deters vs. Renick, 37 Mo., 597; 47 Mo., 29; Vastine vs. Probate Ct., 38 Mo., 529; 47 Mo., 146; State vs. Macon Co. Ct., 41 Mo., 453; St. Louis vs. Alexander, 23 Mo., 483; Tierney vs. Dodge, 9 Minn., 166; State vs. Binder, 38 Mo., 450; 1 Blackst., 89; State vs. Morristown, 33 N. J., 57; State vs. Branin, 3 Zabr., 484; State vs. Clarke, 1 Dutch., 54; State vs. Jersey City, 5 Dutch., 170; In reGoddard, 16 Pick., 504; Dill. Mun. Corp., § 54, and n.; Ang. & Ames' Corp., 333; Cooley's Con. Lim., (2nd Ed.,) 198; Comm. vs. Patch, 97 Mass., 221; St. Louis vs. Weber, 44 Mo., 547.)

And a city may pass ordinances inconsistent with the general law of the State, where the power to do so is clearly given in the special act of incorporation or charter. If the charter contravenes the general laws of the State, so may ordinances do the same to the extent authorized by the charter, and they will be valid. (Cooley's Con. Lim. 198, and n. 3; Dill. Mun. Corp., § 54 and n.; 1 Bish., C. L., § 58, and n. 3; State vs. Binder, 38 Mo., 450.)

IV. It cannot be objected to as of supposed immoral tendency, because that is a matter for the Legislature to consider. If a law is passed, and it contravenes no provision of the constitution, State or national, it cannot be overthrown, because in the...

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