State v. Debar

• Decision Date: 31 October 1874
• Citation: 58 Mo. 395
• Parties: THE STATE OF MISSOURI, Respondent, v. VIC. DEBAR, Appellant.
• Court: Missouri Supreme Court

58 Mo. 395

THE STATE OF MISSOURI, Respondent,

v.VIC. DEBAR, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from St. Louis Court of Criminal Correction.

Joseph G. Lodge with N. C. Claiborne, for Appellant.

I. When a law repealing a former clause or provision shall be itself repealed, it shall not be construed to revive such former law, clause or provision, unless it be so expressly provided. (Wagn. Stat., 894, § 3.)

II. The charter of the city of St. Louis of 1870 was a law repealing a general law of the State (concerning bawdy houses, and under which defendant was prosecuted below) within the city of St. Louis. (State vs. Clark, 54 Mo., 33.) And said charter of 1870 was itself repealed in 1874, without, however, expressly reviving the general law formerly repealed, within said city.

M. W. Hogan, for Respondent.

I. The general statute was not repealed; it was only suspended in St. Louis during the existence of what was known as the Social Evil Ordinance, which tolerated bawdy houses within said city, under certain rules and regulations prescribed by the city council. And now that the power to regulate such houses has been taken away from the council, the suspension of the general statute in regard to them, within the corporate limits of St. Louis, is removed, and the keepers of bawdy houses, according to the provisions of said statute, can be punished here as well as in other parts of the State. (City of Hannibal vs. Guyott, 18 Mo., 520.)

LEWIS, Judge, delivered the opinion of the court.

The defendant was prosecuted by information and convicted under the general statute, which prohibits the keeping of bawdy houses. (Wagn. Stat., 502, § 19.) Her appeal to this court is based upon an assumption that the statute is not operative within the limits of the city of St. Louis.

The act amending the city charter, approved March 4, 1870, authorized the passage of ordinances, not inconsistent with any law of the State, for a great variety of purposes, and among them “to regulate or suppress bawdy or disorderly houses, houses of ill-fame or of assignation.” The amendment enacted March 30, 1874, repealed the terms of this special authority, substituting the words, “to suppress (but not license) bawdy or disorderly houses, etc.”

The question before us must be answered by an application to these charter amendments of the following statutory provision, (Wagn. Stat., 894, § 3): “When a law, repealing a former law, clause or provision, shall be itself repealed, it shall not be construed to revive such former law, clause or provision, unless it be otherwise expressly provided.”

If, within the meaning of this provision, the charter amendment of March 4, 1870, operated a repeal of the general law, in its application to the city of St. Louis, then the repeal of that amendment by the enactment of March, 30, 1874, did not revive the general law, but left it still inoperative within the same city limits. And in that case, the defendant was wrongly convicted.

The decision rendered by this court, in State vs. Clark, (54 Mo., 17) is conclusive of the premised condition. As the judges then and now on the bench, were divided in opinion, it seems proper to say, that a majority of the court, as at present constituted, adheres to the conclusion then announced. The reasoning of the chief opinion is, in my view, unanswerable, if English words have determinate meanings. The legal issue in that case, turned upon the import of the word “regulate.” If the legislative authority given to the city corporation to regulate bawdy houses, was inconsistent with a law which wholly prohibited their existence, then one law necessarily annulled the other, for both could not stand together.

I cannot conceive a harmony between one rule which says a thing may be done in a particular way, and another which says it shall not be done at all. The mind would revolt from a law “regulating” murder or theft. And this only because it would imply that the act might be committed, if done in conformity with the prescribed rules. The municipal ordinances and the State statutes are from a common source of authority. One class presents it in a delegated, and the other in a direct form, but it is the power of the State which speaks in both. If that power says to the bawdy house keeper, “You must keep a sign over your door, otherwise you shall be punished;” and, in the same breath says, “Your house shall not exist at all, sign or no sign,” there is a manifest incongruity somewhere. In order to enforce any “regulation,” it is first necessary to ascertain that the subject of treatment is a bawdy house. And when that...