State v. Tower

• Citation: 84 S.W. 10,185 Mo. 79
• Parties: THE STATE v. TOWER, Appellant
• Decision Date: 13 December 1904
• Court: United States State Supreme Court of Missouri

84 S.W. 10

185 Mo. 79

THE STATE v. TOWER, Appellant

Supreme Court of Missouri, Second Division

December 13, 1904

Appeal from St. Louis Court of Criminal Correction. -- Hon. Hiram N Moore, Judge.

Affirmed.

Jones Jones & Hocker and Crigler & Kelley for appellant.

(1) The statute upon which this prosecution is based is a criminal or penal statute and as such, under all the authorities, should be strictly construed. Black on Interpretation of Laws (1896 Ed.), pp. 286, 287, 292, 293; State v. Bryant, 90 Mo. 538; State v. Schuchmann, 133 Mo. 123; State v. Howard, 137 Mo. 296; State v. Butler, 178 Mo. 319; State v. Gritzner, 134 Mo. 527. (2) This statute, being a criminal or penal one, should not be extended by implication to include anything not strictly within its terms. The city of St. Louis is not a city having a population of 100,000; hence this statute is not applicable to said city. Black on Interpretation of Laws (1896 Ed.), pp 286-287; State v. Schuchmann, 133 Mo. 124; Bishop Statutory Crimes (2 Ed.), secs. 119, 193, 194, 218, 220, 227; State v. Reid, 125 Mo. 48; State v. Gritzner, 134 Mo. 527; State v. Butler, 178 Mo. 320. (a) Where a statute defining an offense designates one or more classes of persons as subject to its pains and penalties, all others not thus mentioned are to be deemed excluded from the prescribed punishment. Howell v. Stewart, 54 Mo. 400; State v. Gritzner, 134 Mo. 527. (b) The maxim, "The expression of one thing is the exclusion of another" is applicable in the construction and interpretation of criminal and penal stautes. Howell v. Stewart, 54 Mo. 400; State v. Jaeger, 63 Mo. 410; 26 Am. and Eng. Ency. Law (2 Ed.), 604; Jenkinson v. Thomas, 4 Term Rep. 666; State v. Reid, 125 Mo. 48. (3) This statute, being a criminal or penal one, and the terms of it being clear and unambiguous, the literal interpretation must control and must be strictly followed in the enforcement of said statute and in its application. Black on Interpretation of Laws (1896 Ed.), pp. 35, 36, 37, 38, 39, 40; 26 Am. and Eng. Ency. Law (2 Ed.), 598; Hicks v. Jamison, 10 Mo.App. 35; City of Westport ex rel. v. Jackson, 69 Mo.App. 154. (a) If the language is clear and admits of but one meaning, the Legislature should be intended to mean what it has plainly expressed, and there is no room for construction. 26 Am. and Eng. Ency. Law (2 Ed.), 598-599. (b) "Although a literal construction may defeat the object of an act, it is better to abide by this consequence than to put upon it a construction not warranted by the words of the act in order to give effect to what we may suppose to have been the intention of the Legislature." Rex v. Barham, 8 B. & C. 99, 15 E. C. L. 157; Black on Interp. of Laws (1896 Ed.), p. 287. (4) This statute is unconstitutional for the reason that it amounts to a legislative judgment and because it declares that to be a nuisance which is not inherently one, a nuisance being something which worketh hurt, inconvenience or damage. State v. Julow, 129 Mo. 163. (5) Because it is a special law applicable to only certain communities and to certain individuals within those communities, and is in violation of article 4, section 53, Constitution of Missouri. State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Hermann, 75 Mo. 340; State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 95; State ex inf. v. Washburn, 167 Mo. 689; Henderson v. Koenig, 168 Mo. 376. (6) Because said statute assumes guilt upon certain facts appearing, and places the burden of disproving it upon the defendant in violation of the Constitution. Article 2, sec. 30, Constitution. Because said statute undertakes to prescribe what shall be conclusive evidence of guilt, and thereby usurps the judicial power of the State. White v. Flynn, 23 Ind. 46; Martin v. Cole, 38 Ia. 141; Corbin v. Hill, 21 Ia. 70; U. S. v. Klein, 13 Wall. 128; Railroad v. Simonson, 64 Kan. 802; Groesbeck v. Seeley, 13 Mich. 329; article 3, Constitution. (7) Because it is in derogation of the right of the city of St. Louis to manage its internal affairs as given by the scheme and charter of said city. Murnane v. St. Louis, 123 Mo. 479; St. Louis v. Dorr, 145 Mo. 500; K. C. v. Stegmiller, 151 Mo. 204; State v. Mason, 153 Mo. 52; State v. Mason, 155 Mo. 501; R. S. 1899, vol. 2, p. 2486. (8) The act is also unconstitutional, being in violation of the rights given by the Constitution and its charter to the city of St. Louis. St. Louis v. Dorr, 145 Mo. 499; R. S. 1899, vol. 2, p. 2486; art. 4, sec. 53, Constitution.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, Douglas W. Robert and Luther E. Smith for the State.

(1) The point has been made that this act is unconstitutional because it applies only to such cities as have or may have exactly one hundred thousand population; in other words, in as much as it is an absurd proposition to hold that any city has exactly one hundred thousand population, the act, therefore is void. Then, too, it is asserted that because the city of St. Louis has a population of more than one hundred thousand inhabitants, said act is not applicable to citizens residing therein. This point is frivolous and absurd upon its face. The statutes provide that its provisions shall apply to the inhabitants of all cities of this State which now have or may hereafter have a population of one hundred thousand people. This is sufficient to cover all cities having a population of one hundred thousand or more. Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Marion County, 128 Mo. 427. The presumption is always indulged that the Legislature does not intend an absurdity or that absurd consequences shall flow from legislative enactments. Black, Interp. of Laws, sec. 48. In construing a statute, of whatever class it may be, whether penal or otherwise, an interpretation must never be adopted which will defeat the purpose of the act if it will admit of any other reasonable construction. Simmons v. California Powder Works, 7 Cal. 285; Thompson v. State, 20 Ala. 54; Philadelphia v. Railroad, 102 Pa. St. 190. All statutes are presumed to be constitutional and when assailed as being unconstitutional their invalidity must be shown beyond a reasonable doubt. State v. Layton, 165 Mo. 399; State v. Thompson, 144 Mo. 315; State ex rel. v. Aloe, 152 Mo. 466; State v. Hope, 100 Mo. 347; State ex rel. v. Simmons Hardware Co., 109 Mo. 118; State ex rel. v. Ransom, 73 Mo. 78. (2) Whether or not a statute be a local or a general law is to be determined by the way it affects the people as a whole, rather than by the extent of the territory over which it operates. If it affects equally all persons who come within its range, it is not a local or special law. State ex rel. v. Ins. Co., 150 Mo. 113; State ex rel. v. Yancy, 123 Mo. 391; Phillips v. Railroad, 86 Mo. 540; State ex rel. v. Wofford, 121 Mo. 61; Lynch v. Murphy, 119 Mo. 163. (3) The statute here invoked was evidently adopted for the purpose of guaranteeing to the people who reside in cities having a population of one hundred thousand full protection against such conditions as naturally exist on account of the smoke emitted and discharged from such enterprises. In fact, the decision of the court in 141 Mo. 375, seems to be the basis of the act in question. That decision, so far as defendant's guilt or innocence is concerned, is of no importance here, because he was charged and convicted upon a statute enacted by the legislative department of the State government. This act is a valid exercise of the police power in that it extends protection to the lives, health, comfort and quiet of all persons in cities of one hundred thousand inhabitants. Thorp v. Rutland, 27 Vt. 147; Slaughter House Cases, 16 Wall. 36; Railroad v. Ky., 161 U.S. 677; Holden v. Hardy, 169 U.S. 366; Mugler v. Kansas, 123 U.S. 661; Northwestern Fertilizer Co. v. Hyde Park, 97 U.S. 659; State v. Donnelson, 41 Minn. 82. In populous cities, largely occupied with residences, the emission of dense or thick, black or gray smoke will unavoidably cause discomfort, if not ill health, and, therefore, constitutes a proper subject of regulation under the police power of the State. Field v. Chicago, 44 Ill.App. 410; Wood on Nuisances, sec. 429; Cromp v. Lambert, L. R. 3 Eq. 409; Hyatt v. Meyers, 71 N.C. 271; Ross v. Butler, 19 N.J.Eq. 294. The case of Moses v. United States, 50 L. R. A. 532, is a case directly in point here. The Legislature has a wide discretion in the exercise of the police power of the State, and may add to or substract from the list of public nuisances recognized at common law, leaving in their discretion, as occasion may suggest or exigencies require, any limitations which have not been definitely settled. Lawton v. Steele, 152 U.S. 140; Landsberg v. District of Columbia, 11 App. D. C. 527; Powell v. Pennsylvania, 127 U.S. 678; Mugler v. Kansas, 123 U.S. 623; Crowley v. Christensen, 137 U.S. 86. The argument is advanced that the act is unconstitutional, in that it discriminates against certain persons by exempting railway locomotives. This proposition was also raised in the case of Moses v. United States, supra. Steele v. Beardsley, 108 Ia. 396; Rudont v. Knox, 148 Mass. 368; Commonwealth v. Parks, 155 Mass. 531; Sawyer v. Davis, 136 Mass. 246; Powell v. Penn., 127 U.S. 678. (4) "The State Legislature has the power to pass all laws not prohibited by the Constitution of this State or the Constitution of the United States." Cass Co. v. Jack, 49 Mo. 96. "Unless prohibited by the Federal or the State Constitutions, the Legislature of this State has the same unfettered powers as belong to the British Parliament." State v. Wear, 145 Mo. 200; Ex parte Roberts, 166 Mo. 207; Morrison v. Morey, ...