The City of St. Louis v. Meyrose Lamp Manufacturing Co.
| Decision Date | 08 June 1897 |
| Citation | 41 S.W. 244,139 Mo. 560 |
| Parties | The City of St. Louis v. Meyrose Lamp Manufacturing Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. Hon. David Murphy, Judge.
Affirmed.
E. J O'Brien and D. B. Kribben for appellant.
(1) It is manifest that the charter does not confer upon the city power to require owners of steam boilers to employ anybody it is entirely silent on such subject. Therefore, the assumption by the city of such power is void. Municipal corporations possess and can exercise only, first, such powers as are granted in express words; second, those necessarily or fairly implied in or incidental to the powers expressly granted, and third, those which are essential to the declared objects and purposes of the corporation. Any fair, reasonable doubt concerning the existence of a power of a municipal corporation will be resolved against the corporation and the power denied. St. Louis v. Bell Telephone Co., 96 Mo. 623; St. Louis v Laughlin, 49 Mo. 562; 1 Dillon, Mun. Corp., sec. 89; St. Louis v. Herthel, 88 Mo. 128. (2) The ordinance not only deprives a steam boiler owner from employing an engineer of his own selection, but as in the case at bar, prohibits him from retaining as an employee an engineer who has served the appellant in that capacity for fifteen years, and this deprivation is accomplished under the ordinance without notice or process of any description. He can not even operate his own steam plant, unless he procure a license which, as we have noted, may be refused him at the sole option of two of the board of engineers. The ordinance is void because it violates the following provisions of the Constitution of this State, viz.: "Sec. 4, art. 2. That all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry. Section 30, art. 2: That no person shall be deprived of life, liberty or property without due process of law. Section 53, art. 4: Forbidding the legislature to grant "to any corporation, association or individual any special or exclusive right, privilege or immunity." State v. Loomis, 115 Mo. 307; State v. Julow, 31 S.W. 781; State v. Jacobs, 98 N.Y. 98; People v. Marx, 99 N.Y. 377; State v. Divine, 98 N.C. 778; In re Yick Wo, 118 U.S. 372; Radecke case, 49 Md. 217; City of Richmond v. Dudley, 28 N.E. 312. (3) The ordinance, inasmuch as it finally and exclusively commits to the board of engineers such discretion is a delegation of power without authority, and is therefore void. Ministerial powers may be delegated by a city but legislative powers can not. Legislative power implies judgment and discretion on the part of those who exercise it, and a special confidence and trust on the part of those who confer it. St. Louis v. Howard, 119 Mo. 41; City v. Russell, 116 Mo. 255; St. Louis v. Clemens, 43 Mo. 395; Ruggles v. Collier, 43 Mo. 353; Thompson v. Boonville, 61 Mo. 282; Matthews v. Alexandria, 68 Mo. 115; In re Quong Wco, 13 F. 229; Barthet v. New Orleans, 24 F. 564; Newton v. Bolger, 143 Mass. 598; Darling v. St. Paul, 19 Minn. 389.
W. C. Marshall and Leverett Bell for respondent.
(1) Appellant relies upon two propositions in this case, to wit: First. That the ordinance in question deprives the owner of a steam boiler of the right to select his own engineer, and in the case at bar even prohibits the owner from operating his own steam plant; and appellant contends that for this reason the ordinance violates sections 4 and 30, of article 2, and section 53, of article 4, of the Constitution of Missouri. Second. That the ordinance is void because it grants to the board of engineers the power to say whether or not an applicant for a license as an engineer possesses the "capacity, skill, experience and habits of sobriety requisite to perform the duties of an engineer." And that the ordinance creating the board of engineers and vesting in them the power to examine and license applicants as engineers is a delegation of legislative power -- the power being vested by the charter in the mayor and assembly alone. I am wholly unable to see wherein this wholesome police regulation in any manner conflicts with any of the articles or sections of the Constitution relied upon by appellant. Steam boilers, when located in large cities, may become a source of danger, not only to the occupants of the house in which they are operated, but to other persons occupying adjoining premises. This being the case, it is within the police doctrine of sic utere tuo ut alienum non laedas. A man may be perfectly willing to risk his own life or the lives of his family by operating a steam boiler himself, or having it operated by another, neither of whom possessed any sufficient knowledge on the subject, but he has no right to jeopardize the lives and well being of his neighbors, however indifferent he might be as to those of his own family. The Constitution of this State never granted to any man an absolute right to use his own property in any manner he saw fit. No man in a civilized community has absolute freedom either of person or property. The restrictions necessary to a well regulated community curtail his natural rights. (2) Appellant's second contention that the ordinance is void because it authorizes the board of engineers to examine applicants for licenses as engineers and to pass upon their capacity, skill, experience and habits of sobriety, and hence is a delegation of legislative power, because the charter confers such power upon the mayor and assembly. The charter authorizes the mayor and assembly by ordinance, "to regulate or prevent the carrying on of any business which may be dangerous or detrimental to the public health, or the manufacture or vending of articles obnoxious to the health of the inhabitants." And "to make provision . . . . for the inspection of steam boilers and all steam heating apparatus, and to license engineers using steam boilers in said city." And "to regulate and provide for the election or appointment of city officers required by this charter, or authorized by ordinance, and provide for their suspension and removal." And it also provides for the appointment of an inspector of boilers and elevators, and for the appointment of two persons, one of whom shall be a practical, mechanical engineer, and one shall be a manufacturer of engines and steam machinery, who, in connection with the inspector of boilers and elevators. The ordinance provisions are valid ordinance provisions under the charter of the city. (3) The gravamen of appellant's objection seems to be that under the charter of the city of St. Louis, the mayor and assembly alone has power to examine applicants for engineer's licenses, and that if it undertakes to create a board of engineers with power to license them, it thereby delegates legislative power. Counsel for appellant has overlooked the essential fact that the charter authorizes the mayor and assembly "to make provision . . . . for the inspection of steam boilers and all steam heating apparatus, and to license engineers using steam boilers in said city." (4) The duties performed by this board are not legislative duties, but are in the nature of police functions which may be performed by persons who would not, perhaps, be any better qualified to discharge legislative duties than the ordinary legislator would be to discharge the duties devolved upon a board of this character. (5) The validity of these and similar statutes has been adjudged by the courts, and objections that they constitute a delegation of legislative power denied. As to physicians, this court upheld the validity of the law, in the case of State ex rel. v. Hathaway, 115 Mo. 36. A similar conclusion was reached in Eastman v. State, 109 Ind. 278. And as to dentists, in Wilkins v. State, 113 Ind. 514. A like conclusion was reached in Arkansas, in Richardson v. State, 47 Ark. 562. See, also, Orr v. Meek, 111 Ind. 40; Dent v. West Virginia, 129 U.S. 114; St. Louis v. Knox, 74 Mo. 79.
The defendant was prosecuted in the police court. Information, the following:
Being convicted, it appealed to the court of criminal correction, in which court when reached, it filed its motion to quash the information because:
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