State v. Simonds

• Court: Missouri Supreme Court
• Writing for the Court: M'GIRK
• Citation: State v. Simonds, 3 Mo. 414 (Mo. 1834)
• Decision Date: 30 June 1834
• Parties: THE STATE v. SIMONDS.

3 Mo. 414

THE STATE

v.SIMONDS.

Supreme Court of Missouri.

June Term, 1834.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

M'GIRK, C. J.

An indictment was found against Simonds for keeping a Roulette Table and permitting a game of chance to be played thereon. Simonds pleaded that on a certain day before the finding said indictment, he was convicted and fined for the same offense before Wilson Primm, a justice of the peace for St. Louis county, which conviction took place under the authority of the corporation of the city of St. Louis. On demurrer to this plea the defendant had judgment. The point made and relied on by Mr. Mullanphy, counsel in behalf of the State, is, that by the Constitution of the State all legislative power is granted to and vested in a General Assembly, and that the General Assembly could not create a corporation vesting it with legislative powers, as has been done in this case, 3 art. and 1 sec. of the State Constitution.

It is true as a general proposition, that all legislative power is vested in the General Assembly, and whether that body can incorporate a city, as has been done in the city of St. Louis, we will proceed to inquire. The act incorporating the city of St. Louis, authorizes the Mayor and Aldermen to exercise legislative powers, and among others they have the power, by 12th section of the act, to regulate and restrain gaming and gaming houses. See Rev. Code, 201. Under this power the corporation impose a fine of $500 for keeping a Roulette Table by the 89th section of the act respecting crimes and misdemeanors, the same penalty is imposed for keeping any manner of gaming tables, &c.: see Rev. Code, 310. It would seem that all legislative power is given to and vested in the General Assembly by the Constitution. Yet we have no difficulty in deriving satisfactorily from the Constitution, the power authorizing the corporation of the city of St. Louis to legislate and make police law to restrain and prohibit gambling, &c. In the first place we assume it as true, that no city of any size can at all get along without this power. We admit that the necessity of the case does not of itself form a sufficient reason why the power should be exercised if it is not given, or if it is denied; but it does form a reason why the power should not be denied unless it is clearly denied. At the time the Constitution of this State was formed, the town of St. Louis was incorporated with nearly similar powers to those now granted; the Constitution was formed in the town; the...