95 Mo. 44 | Mo. | 1888
Lead Opinion
This cause comes here on the appeal of those who were respondents in the circuit court, that court having awarded against them a peremptory writ.
I. Before going into the merits of the case, however, a preliminary question must first be determined ; it is this, whether the relators, being merely private citizens, are proper parties to this proceeding. In State ex rel. v. Hoblitzelle, 85 Mo. 620, it was ruled that the relator being a contestant for an office, had a right to have an inspection of the poll-books relating- to his. election. But in the minority opinion it was declared that, where a public right is involved, and the object is-to enforce a public duty, the people are regarded as the real party, and in such case the relator need not- show any legal or special interest in the result, the fact that he is a citizen, and, as such, interested in the execution of the laws is the sesame which unlocks the gates of mandatory authority whenever an officer whose functions are merely ministerial, refuses to perform his office and thereby causes detriment to the public interest. In the subsequent case of State ex rel. v. Railroad, 86 Mo. 13, the position of the minority was fully endorsed, some of. the same authorities being cited in its support. The great weight of judicial decision supports this view./ This point must, therefore, be ruled in favor of the" relators.
II. The act of 1857, now to be considered, is entitled, “An act confirming certain power to the citizens of St. Louis county,” and is as follows : '
“ Section 1. That the corporate authorities of the different cities in the county of St. Louis shall have the power, whenever a majority of the legal voters of the respective cities in said county authorize them so to do,*49 to grant permission for the opening of any establishment or establishments within the corporate limits of said cities for the sale of refreshments of any kind (distilled liquors excepted) on any day in the week.
“ Section 2. Any person,„ who shall on a Sunday sell or offer for sale, within the corporate limits of said cities, any distilled liquors, or any composition of which. distilled liquors form a part, shall' be punished by a fine of not less than ten, nor more than fifty dollars.
“Section 3. The provisions of the first section of this act shall not be construed as authorizing the sale of ardent spirits on any day mentioned, except as now by law allowed.
“ Section 4. All acts and parts of acts conflicting with the provisions of this act are hereby repealed. This act to take effect from its passage.”
Approved March 4, 1857. Laws 1856-7, p. 673.
It is claimed that this act is unconstitutional, as being a delegation of legislative power. This contention cannot prevail, for the reason that the power which the legislature confers upon municipal corporations when granting them charters, with authority to pass ordinances, etc., for local self-government, has never been considered a delegation of legislative power, and does not make an exception to the rule that such legislative power, conferred upon the General Assembly, is to be exercised by that body alone and not to be delegated to others. State v. Field, 17 Mo. 529; 1 Dill. Mun. Corp., sec. 308 and cas. cit.; Metcalf v. City, 11 Mo. 103. And whenever the legislature has the power, originally, to confer upon a municipality authority to enact ordinances and by-laws, such power embraces within its scope the right, by subsequent, legislation, to enlarge the chartered powers of a municipality, by enactments similar to those specified in the act under consideration, and to prescribe the methods in
Of course, these remarks are subject to those restrictions contained in the organic law, forbidding the legislature to pass “local or special laws regulating the affairs of counties, cities, etc., or, incorporating cities, etc., or changing their charters.” But at the time the act of 1857 was passed, there were no such constitutional prohibitions in existence, no such limitations on the free-exercise of legislative power. It follows from the premises that the law in question is not obnoxious to any constitutional objection. It is proper to add here that no discussion of the constitutionality of that law has ever occurred in this court. In State v. Winkelmeier, 35 Mo. 103, any expression of opinion on the subject was expressly refused, and in the subsequent case of State v. Binder, 38 Mo. 450, notice was taken of such refusal in the former case, but still no judicial utterance was made concerning the matter.
III. The next point to be determined is, whether the ordinance passed in pursuance of the law just discussed, and known as ordinance number 4,137, was adopted by the requisite number of votes. That ordinance was passed March 26, 1858, and is as follows:
“Be it ordained by the City Council of the City of St. Louis :
“ Section 1. That on the first Monday in April next, at an election to be held in St. Louis on that day, the legal voters of the city of St. Louis shall and may determine, by a vote, the question whether the city of St. Louis shall or may grant permission for the opening of any establishment or establishments, within the corporate limits of said city, for the sale of refreshments of any kind, distilled liquors excepted, on any day of the*51 week, in accordance with the provisions of an act of the General Assembly, of the state of Missouri, entitled ‘ An act confirming certain powers upon the citizens of St. Louis county,’ approved March 4, 1857.
“ Section 2. That such votes shall be by ballot and shall be in the following form, viz: for sale of refreshments and against sale of refreshments.
“Section 3. The mayor of the city shall by proclamation notify the voters of the city of St. Louis of the taking of such vote in the same manner as he notifies them of the election of city officers.” -
The rule established in State v. Winkelmeier, supra, is this: That, when by law, a vote is required or permitted to be taken, aud a majority of the legal voters is mentioned in such law as being necessary to carry the proposed measure, that such majority must be a majority of all the legal voters entitled to vote at such election, and not a mere majority of those voting thereat. This rule, thus laid down, has since become firmly established in the jurisprudence of this state. State ex rel. v. Sutterfield, 54 Mo. 392; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Mayor, 73 Mo. 435. The case of State v. Binder, supra, is based upon its own peculiar facts, and is not, perhaps, to be regarded as shaking the authority of Winkelmeier’s case, or of the other cases cited. And even were it to be so regarded, the well-settled rule laid down in the later cases referred to, would still be regarded as better, safer, and more sound.
In Winkelmeier’s case, supra, the returns of the election held in conformity to the ordinance mentioned, showed that, at such election, “more than thirteen thous- and voters participated in that election, and that only five thousand and thirty-five persons voted in favor of giving to the city authority to grant permission to open establishments for the sale of refreshments on Sunday, and two thousand and one persons voted against it.”
, In the present instance all embarrassment as to the vote cast at that particular time is removed by reason of the following passage in the return of the respondents : “These respondents admit, as set out in said writ, that the then mayor of the city of St. Louis, on the-day of March, 1858, issued a proclamation for an election of city officers to be held on the fifth day of April, 1858, and also to vote to authorize the corporate authorities of said city to grant permission for the sale of refreshments, in said city on the first day of the week commonly called Sunday, as provided in said act of 1857, and said ordinance 4137; and that at said election there were-cast for mayor of said city thirteen thousand and twenty-one votes, and for authorizing the said corporate authorities of said city to grant permission for the sale, of refreshments- as specified in said act of 1857, five thousand and fifty-one votes, and against it two thousand and thirty-four votes ; but these respondents
These admitted facts bring this case within the principle of the rule heretofore announced ; and demonstrate that the corporate authorities of the city were never granted authority to pass any ordinance permitting the sale of fermented liquors on Sunday, and render needless any investigation as to the validity of any subsequent ordinance of the city permitting that to be done which had not been authorized to be done by the prerequisite majority vote. No discussion, therefore, will be entered upon relative to whether certain void ordinances, passed under the forms of law, but without any legal validity, were repealed or superseded by subsequent ordinances or revisions.
IY. The act of March 4, 1857, was merely provisional in its character. It did not directly repeal, nor was it intended to repeal, the law which forbade the sale of fermented liquors on Sunday, and so this point has been heretofore ruled. State v. Winkelmeier, supra; State v. Binder, supra. This is easily proven: for if the fourth section of that act accomplished the repeal of the statute forbidding the sale of fermented liquors on Sunday, in the cities of St. Louis county, then no necessity existed for the permission to the city council to do, upon a majority vote taken, what had already been done by the fourth section of the law itself. This case is, therefore, freed from all necessity
V. And this conclusion is not in the least affected by the provisions of the charter of 1876, pleaded in the return of the respondents, as authorizing the municipal assembly of the city to regulate saloons, beer-houses, tippling-houses, dramshops, etc., as no ordinance was passed pursuant to such provisions. If such an ordinance had been passed prior, or subsequently, to the act of 1883, there might possibly be ground to consider whether the rule laid down in State v. Clark, 54 Mo. 17, and State v. DeBar, 58 Mo. 395, cited by respondents, would control in this case or not. Schweitzer v. City of Liberty, 82 Mo. 309, and cas. cit. As the record stands there is no room for a discussion or determination of the point.
VI. This conclusion brings to view the only remaining question requisite to be discussed, which is, whether mandamus is the appropriate remedy to invoke in the case at bar. In discussing this point it is proper to quote the language of the peremptory writ, showing just what it requires respondents to do in the premises; it is as follows : “Whereupon, it is by the court considered and adjudged that a peremptory mandamus be issued to the said respondents directing and commanding them that they do enforce, within the limits of the city of St.
The duties of the respondents are thus set forth in the alternative writ: ‘ ‘ They shall at all times of the day and night, within the boundaries of the city of St. Louis, as well on water as on land, preserve the public peace ; prevent crime and arrest offenders ; protect the rights of persons and property ; guard the public health ; preserve order at every public election, at all public meetings and places, and on all public occasions ; prevent and remove nuisances on all streets, highways, waters, and other places ; provide a proper police force at every fire for thé protection of firemen and property; protect emigrants and travelers at steamboat landings and railway stations; see that all laws relating to elections and the observance of Sunday, and regulating pawnbrokers, gamblers, intemperance, lotteries and
In the extensive range of duties thus laid out by the provisions of the charter for the respondents to perform, it seems very plain that elements of discretion enter into the performance of some of them, and whenever this is the case, the rule is, that while the mandatory authority will be used to put public officers in motion, yet it will not dictate the terms in. which such discretion is to be exercised. State ex rel. v. Gregory, 83 Mo. 123; High Ext. Leg. Rem., secs. 24, 43, 44, and cas. cit. In regard to the duties of respondents respecting the observance of
In order that a writ of mandamus may issue, it being an extraordinary remedy, two prerequisites must exist: it must appear, first, that the relator has a clear legal right to the performance of a particular act or duty, and, second, that the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it is sought to coerce. High Ext. Leg. Rem., sec. 10. In the case at bar, it will be observed that the peremptory writ, not confining itself to the performance of a qtarticular act, commands that several particular acts be done by respondents, among them that four persons be arrested and prosecuted for past offences, and that a particular order made by respondents, directing the chief of police not to interfere with the sale of wine or beer on the first day of the week, commonly called Sunday, be vacated. In addition to these particular acts the writ commands the performance of several acts in general! It is needless to say that there is no warrant for a premptory writ so broad in its terms and so various in its commands.
Again, on the mere admission of the' respondents that four citizens have done certain acts, the latter are to be arrested and prosecuted without affidavit and without warrant. This is further, it seems to me, than the mandatory authority of a court extends. Indeed, I have found no precedent for a mandamus for the arrest
The judgment will be reversed and the cause remanded, with directions to allow suitable amendments to be made in the alternative and peremptory writs in conformity with this opinion. High Extra. Leg. Rem., sec. 519; R. S., sec. 3585; School Dist. v. Lauderbaugh, 80 Mo. 190. When such amendments have been made, the circuit court will issue its peremptory writ, commanding that respondents vacate the order heretofore
Concurrence Opinion
Concurring. — In the view I take of this case, it is unnecessary to express any opinion upon the question whether the vote taken under the act of 1857 gave the corporate authorities of St. Louis power to pass-ordinance number 4869, or any ordinance on the subject. I am satisfied the legislature intended, by the act of March 24, 1883, to make the dram-shop law apply to all cities in the state, St. Louis not excepted, and that the repealing section accomplished that purpose. This being so, the act of 1857 was thereby repealed, and the dram-shop law, as amended by the act of 1883, became the-law in St. Louis as elsewhere throughout the state. With this conclusion, I agree as to what is said in the' opinion just filed in respect of the remedy by the writ of mandamus.
Concurrence Opinion
Concurring. — I concur in the above opinion, not only for the reason that, under the facts stated in regard to the vote taken in 1858, as to whether the sale of fermented liquors on Sunday should be permitted in the city of St. Louis, such vote did not authorize the passage of the ordinance in question, and this was expressly so held in the case of State v. Winkelmeier, 35 Mo. 103, but for the additional reason that, inasmuch as the Downing law contains a provision expressly repealing all acts or parts of acts inconsistent with it, the act of 1857, being repugnant to, and irreconcilably inconsistent with, the Downing law, is by necessary implication repealed. But whatever doubts,, if any, might exist as to the correctness of the position last-stated, such doubts are entirely removed by the act of 1887, which in express terms repeals said act of 1857.