120 Mo. 1 | Mo. | 1894
After an appeal from the mayor’s court, of the city of Tarkio, and upon a trial in the circuit court, defendant was convicted of the violation of an ordinance of said city, and the payment of a fine of $25 adjudged against him, from which he appealed to this court, on the ground that said ordinance was in violation of section 28, article 4, of the constitution of the state.
I. The .ordinance was entitled “An ordinance to regulate billiard halls, and to regulate, levy, and collect license on billiard and other tables upon which games are played for amusement, and to prohibit gambling therein.” The sixth section, upon which defendant was convicted, required that no billiard halls should be
Defendant was charged also with violating other independent sections of the ordinance, but, as there was no conviction under them, their provisions need not be * considered. If section 6 is constitutional and valid, it could be enforced, though all the remaining sections of the ordinance were void. St. Louis v. Railroad, 89 Mo. 44; State v. Clarice, 54 Mo. 17.
II. The constitutional provision that “no bill shall contain more than one subject, which shall be clearly expressed in its title,” (sec. 28, art. 4, of the constitution) of which, it is claimed, the ordinance in question is violative, was intended -to apply only to state legislation, and has no application to ordinances of this city. The article treats exclusively of the legislative department of the state, and the first section declares: “The legislative power, subject to the limitations herein contained, shall be vested in a senate and house of representatives, to be styled ‘the G-eneral Assembly of the state of Missouri.’” Municipal legislation is thus clearly excluded. 1 Dillon on Mun. Corp., sec. 47.
Under authority of the constitution the legislature has provided, by general law, for the organization of cities and towns, and to that law we must look to ascertain the powers conferred and the manner in which they may be exercised. Under this law we find no requirement that the title to an ordinance shall conform to the requirements of the constitution relating to legislative bids; indeed we find no requirement or direction on the subject.
III. In the next place it is insisted that the enacting clause of the ordinance does not conform to the requirements of the statute. This objection does not
IV. The ordinance is also attacked as being unauthorized by the charter. This objection can not be sustained. Power is not only given, generally, to pass such ordinances as may be expedient to maintaining the peace and good government, health and welfare of the city, but expressly to regulate “billiard tables” on “which games axe played for amusement.” Revised Statutes, 1889, sec. 1589. There can be no doubt under this authority the city had the power to pass an ordinace relating to, and regulating, not only the tables upon which the game of biilards is played, but also the halls or rooms in which they are kept and used.
Y. It is insisted also that the ordinance should not be enforced, because it is unreasonable, oppressive, discriminating, and in derogation of common right. This objection ;is urged with much earnestness, and merits thoughtful consideration, as, doubtless, most cities of the fourth class have adopted, and are enforcing ordinances on the same and kindred subjects.
On the subject of general powers of municipal corporations to adopt by-laws, Judge Dillon says: “In England, the subjects upon which by-laws may be made were not usually specified in the king’s charter, and it became an established doctrine of the courts that every corporation had the implied or incidental right to pass by-laws; but this power was accompanied with these limitations, namely, that every by-law must be reasonable, and not inconsistent with the charter of the
Charters of cities are grants of power under which alone they are authorized to legislate. All ordinánces must therefore rest upon powers' either expressly granted or reasonably incident to such as are granted, and which are essential to the purposes of the corporation. But there must not only be power, but the manner of its exercise, if not expressly provided, must be reasonable and in harmony with the general laws of the land. Hence it is held, the ordinances are subject to revision by the courts, not only in respect to whether the corporation had power to pass them, but also, in respect to whether a general or implied power, if it existed, was exercised reasonably. St. Louis v. Weber, 44 Mo. 547; Cape Girardeau v. Riley, 72 Mo. 221; St. Louis v. Tel. Co., 96 Mo. 631.
It by no means follows that the municipal authoiities of a city have no discretion as to the manner in which the powers conferred shall be exercised. Indeed the largest discretion is given them, unless expressly restricted by the charter; and an ordinance which is within the limits of the powers conferred will not be declared void unless very clearly repugnant to some principle of common right.
Cities of the fourth class are given power to regu
Keepers of billiard tables are not recognized by the state as exercising a useful occupation. They are subjected to police regulation by the state and by cities under powers granted them by the state. R. S. chap. 16. They are prohibited from allowing minors to play upon their tables. R. S., sec. 715. Villages may prohibit them altogether. R. S., sec. 1672. Public billiard halls are regarded by many as vicious in their tendencies, leading to idleness, gambling and other vices. Each municipality can best determine for itself to what regulations they should be subjected, and, unless an ordinance fixed hours for their use which were in effect prohibitory, the courts should 'not interfere with the discretion exercised. We can not say that the ordinance in question, in requiring billiard halls to be closed at 9 o’clock in the evening, is unreasonable or in derogation of any common right. 1’ Dillon on Mun. Corp., sec. 400.
VI. Section 1589 authorizes the city to pass ordinances for enforcing its police regulation by imposing a fine of not more than $100 for their violation. The ordinance in question imposes a fine of not less than $25 and not more than $100 for its violation. It will be seen that the penalty is within the limits of that prescribed by the charter. A similar case was considered by the supreme court of New Jersey, in which it was held that “where the legislature has defined the delegated powers, and prescribed with precision the penalties that may be imposed, an ordinance within the
An interference with the action of the city of . Tarkio, in prescribing the penalty for the violation of this ordinance would set at naught the authority of the legislature to delegate the power and to prescribe the • limit to the penalties that might be imposed. If the authority had been granted in general terms to impose a fine without fixing its limit, the courts might inquire into the reasonableness of that fixed by the ordinance; but no such inquiry should be made, where, as in this case, the maximum of the fine imposed is within the prescribed limits of the charter.
VII. Objection was made to the competency of a juror, summoned on the panel, on the ground that he belonged to an association called the “Law and Order League,77 the purpose of which was to prosecute persons for violation of the law. The objection first appears on this record in the motion for a new trial, though it is there stated that the juror had declared his connection with such society on the examination as to his qualification. It does appear, moreover, that this juror was not one of the twelve who tried the cause.
In order to secure a review of the action of the trial court on this question, the juror should have been challenged, if incompetent, at the time of his examination, and an exception then taken to an adverse ruling of the court. The objection comes to this court without other verification of the alleged ground of’incompetency than the mere statement in the motion. This is not sufficient to authorize a consideration of the question on appeal.. Misconduct of the court in impaneling a jury is a matter of exception, and unless such exception is saved the errors' will not be considered on appeal.' State v. Brewer, 109 Mo. 652; State v. Hayes,
. Whether the juror was incompetent, for the causes alleged, is not decided.
VIII. The ordinance contained in the printed book, which was in charge of the proper custodian, purporting to have been published by authority of the city, and to contain its ordinances, was admissible in evidence without other proof. B. S. 1889, sec. 4846; Tipton v. Norman, 72 Mo. 381.
Other minor questions have been ' discussed by counsel, all of which have been considered, but we find no error justifying a reversal of the judgment, and it is affirmed. All concur.
