The City of Centralia v. Smith

• Citation: 77 S.W. 488,103 Mo.App. 438
• Parties: THE CITY OF CENTRALIA, Respondent, v. GEORGE W. SMITH, Appellant
• Decision Date: 07 December 1903
• Court: Kansas Court of Appeals

77 S.W. 488

103 Mo.App. 438

THE CITY OF CENTRALIA, Respondent, v. GEORGE W. SMITH, Appellant

Court of Appeals of Missouri, Kansas City

December 7, 1903

Appeal from Boone Circuit Court.--Hon. John A. Hockaday, Judge.

AFFIRMED.

Judgment affirmed.

J. L Stephens for appellant.

(1) The court erred in overruling defendant's motion to quash the information filed in said cause by the city attorney. Ruggles v. Collier, 43 Mo. 353. (2) In the cases of Thompson v. Boonville, 61 Mo. 282, Matthews v Alexandria, 68 Mo. 110, it is held that a city council can not delegate a duty plainly and expressly devolved upon them to the mere discretion and caprice of a single individual. (3) This ordinance is invalid for the reason that it is unconstitutonal, unreasonable and subject to favoritism, placing the power of monopoly in the hands of the mayor. City of St. Louis v. Russell, 116 Mo. 248 and a number of other cases therein cited; Cape Girardeau v. Riley, 72 Mo. 220; State v. Tenant, 14 S.E. 387; City of St. Louis to use v. Clemens, 43 Mo. 385. (3) The court erred in refusing competent, relevant and material evidence offered on the part of the defendant.

H. S. Booth and J. H. Cupp for respondent.

(1) Where the provisions of an ordinance are separable, the whole will not be declared void because of the unconstitutionality of a part. Railroad v. Railroad, 105 Mo. 577-590; City of Rockville v. Merchant, 60 Mo.App. 365; City of Lamar v. Weidman, 57 Mo.App. 507. (2) This ordinance is not unreasonable, nor beyond the scope of the authority of the board. (R. S., sec. 5958); St. Louis v. Railroad, 89 Mo. 44; St. Louis v. Railroad, 14 Mo.App. 221; St. Louis v. Frein, 9 Mo.App. 590; Allen v. Louisiana, 103 U.S. 83.

OPINION

ELLISON, J.

Defendant was convicted in the police court of the city of Centralia for exploding firecrackers within the limits of the city on the Fourth of July, 1901. He appealed to the circuit court of Boone county where he was again convicted. He now comes here asking that the judgment be reversed.

There was a motion made by defendant to quash the information or complaint, which was overruled. As no exception was saved we need not notice it further. The statement made by defendant in his motion for new trial that he excepted is not sufficient.

The ordinance of said city which defendant is charged with violating prohibits the explosion of "firecrackers, roman candles, squibs, pin wheels, throwing turpentine balls, or other combustible device, without the written consent of the mayor specifying the time and place where," etc. We regard it as within the police power of the city to enact the ordinance. The notorious fact that fires, frightening of horses, serious accidents to both actors and spectators commonly follow such amusement, is ample and reasonable ground justifying the exercise of the supervisory restraining power of the municipality.

The defendant claims the ordinance to be invalid as delegating a legislative power to the mayor. The rule is correctly stated by defendant as shown by authorities in his brief that legislative power can not be delegated; but we do not consider that any such power is delegated by the ordinance in question. It prohibits the explosion of firecrackers, etc "without the written consent of the mayor specifying the time and place." This was not a delegation of legislative power. It was a mere cautionary clause, to the end that such matters might be supervised by the executive officers of the city. It was no more a delegation of legislative power than is the...