State v. Clarke

54 Mo. 17 | Mo. | 1873

Lead Opinion

Napton, Judge,

delivered the opinion of the court.

This was an indictment under the general statutes against defendant for keeping a bawdy house. The defendant pleaded a license from the city authorities under an ordinance, Chap. 14, passed by the Mayor and Common Council, and it is conceded, that the license is in proper form and was authorized by the ordinance. The Court of Criminal Correction, however, held the defense to.be unavailing, because the ordinance was not valid. And the only question in the case is,whether the city authorities had power under their charter to pass this ordinance. The language of the charter is, that the city shall have power to “regulate or suppress bawdy houses.” It would seem that resting on these words alone, a doubt would hardly be entertained as to a grant of the power; but at the beginning of section 1, of article third, in which this grant is made, the Legislature use these words: “ The Mayor and City Council shall have power within the city, by ordidinance, not inconsistent with any law of the State, first to levy and collect taxes,” etc., and then proceeds to a specific enumeration of the several powers granted, in all nearly tweiffy, and embracing a great variety of subjects. The ninth of these clauses is to “license, tax and regulate auctioneers,” etc. The tenth is to “license, regulate, tax or suppress” ordinaries, etc., and “to suppress” prize-fighting, etc., and to regulate or suppress bawdy houses.

It is clear, that the Legislature understood the difference between regulation and suppression, and whilst they only conceded to the city' the power to suppress prize-fighting, gambling houses, etc., they allowed the city to either suppress or regulate bawdy houses.

Now, by the general law of the State,' long before the passage of this charter, and since, bawdy houses are totally prohibited and declared-nuisances, and their keepers are indictable, and on conviction heavily punished both by fine and imprisonment.

And so, in the various charters granted to the city of St. Louis previous tó 1870, the authorities of the city had only power to suppress these houses. There was in the charter of 1839 and 1841 a power given to tax, restrain, prohibit, and suppress, but, from 1841 down to 1870, the power was simply to suppress.

The change in 1870 was a significant one, and undoubted» ly meant a change in the policy of the Legislature — very easily accounted for from the fact, that St. Louis had become a large city with nearly half a million of inhabitants — and the Legislature then deemed it advisable to throw upon the authorities of the city the responsibility of deciding what legislation would best promote the morals and health of the city, and therefore virtually said to them: “You are more competent to decide this matter, which concerns you so nearly, than we are. We therefore authorize you to enforce the general laws of the State on this subject and suppress these houses, or to regulate them, as you may think best.”

The meaning of the word “regulate ” has been discussed in this case; but it is a word which from its Latin origin needs no explanation. It certainly implies the continued existence of the subject matter to be regulated.

“To regulate commerce,” are words found in our Federal Constitution, and which have received a judicial interpretation, and they certainly conceded, that the commerce, concerning which Congress was allowed to make regulations, was to be allowed under some rules. It did not mean to annihilate or suppress, or to prohibit under all and every circumstance. No regulations or rules are necessary concerning an evil absolutely prohibited.

The only difficulty in the case arises from the fact, that whilst the Legislature of the State have clearly and specifically entrusted to the municipal Legislature of St. Louis a power to regulate this subject, as they thought most expedient, they have in the same enactment declared, that such legislation must be consistent with the general laws of the State. It is perfectly plain, that this general declaration and the specific grant of power are totally irreconcilable: For the State law had never allowed regulations of any kind concerning bawdy houses, but had absolutely prohibited them, and made them nuisances and obnoxious to prosecution by the law officers of the State.

The question then arises,whether this general prohibition, or this special permissive existence under regulation, must prevail, and we are clear that a particular specified intent on the part of the Legislature overrules a general intent incompatible with the specific one.

Many authorities might be cited on this general proposition, but the case of the State vs. Binder, 38 Mo., 451, is directly in point in this case.

In that case, the Legislature authorized the -city of St. Louis to allow certain beer saloons to be kept open on Sunday, though it was expressly prohibited everywhere else, and the court regarded this as a special exemption from the general law, and, so far as the city was concerned, necessarily a repeal of the general law.

There is no doubt, that the city authorities of St, Louis have no power except such as has been confided to them by the Legislature. No authorities are needed to establish this proposition, as this court has repeatedly recognized the doctrine. There is just as little doubt that, looking at the previous legislation concerning this subject in all the charters of the city, and considering the emphatic change made in 1870, and the subsequent action of the city authorities on that change, and the subsequent silence of the State Legislature on the subject, there was a deliberate intention on the part of the Legislature to leave this subject to the control of the people of St. Louis and their legitimate representatives in the Council.

It is said, that this ordinance is in subversion of the common law — contrary to the general law of the State — against public policy — -and of immoral tendency; and that it contains provisions which infringe on the constitutional rights of citizens.

The Legislature have a right to change the common law— it has a right to allow the legislative authorities of St. Louis to regulate the subject now under consideration differently from what it is in the other portions of the State. It is a naked assumption to say, that any matter allowed by the Legislature is against public policy. The best indication of public policy is to be found in the enactments of our Legislature. To say that such a law is of immoral tendency is disrespectful to the Legislature, who no doubt designed to promote morality, and it is altogether unwarranted to suppose that the object of the law or the ordinance is for any purpose but to promote the morals and health of the citizens. Whether the ordinance in question is calculated to promote the object, is a question with which the courts have no concern. With the expediency, or propriety, or wisdom, of a legislative enactment, we have nothing to do. If a constitutional right is infringed, the courts are open to afford redress. We have no opinion, and therefore express none, about the expediency of this ordinance. Arguments on that point should be addressed to the State or city — Legislature. It would be a novel exercise of judicial power to pass on the expediency of legislative enactments — a matter outside of the province of courts of justice. The only question we have to decide is, whether the power existed to make the law, and we think that the Législature granted this power.

If there are provisions in this ordinance, Chap, lé, which infringe on the rights of citizens, male or female, protected by the constitution and laws of the State, and such provisions are attempted to be enforced, the remedy is obvious. But even according to the case referred to in 1 Gray, it is not pretended that unconstitutional provisions in a law make it totally void. On the contrary, it is well settled, that they do not, and that a law may well stand, so far as it is constitutional, although it has in it certain provisions which are not valid. And in this case the only question was, whether the defendant’s license under the ordinance was a protection. No question, concerning the medical examination provided for in certain sections of the ordinance, arose.

No complaint on this subject was made by any one affected by the provisions said to be oppressive and in opposition to our bill of rights.

It was in fact conceded, that' various provisions of the ordinance were entirely unexceptional so far as the State constitution was concerned, and it was only insisted, that the general intent and scope of the ordinance was to promote immorality. Of this we are not authorized to judge. The legislative authorities of St. Louis are more competent and better qualified • to decide this question than this or any other court. We doubt not, that their intention was to promote the public’ morals. Whether the ordinance in question was the best mode of doing this,was a matter they were authorized to decide. This court has no power to revise their decision on this question — it was a legislative, not a judicial question.

Judgment reversed.

Judges Adams and Wagner concur.

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Dissenting Opinion

Dissenting opinion by

Judge Vories.

This was a prosecution against • the defendant under the nineteenth section of the general statutes, page 818, for setting up and keeping a bawdy-house or brothel. This section provides, that “Every person who shall set up or keep a common gaming house, or a bawdy-house or brothel, shall on conviction, be adjudged guilty of a misdemeanor and punished by a fine not exceeding $1,000.”

It is not pretended by the defendant, that she is not guilty, as charged, of a violation of this statute, provided said statute is still in force within the city limits of the city of St. Louis ; but it is insisted, that this section of the statute has been repealed, so far as the inhabitants of the city of St. Louis are concerned, by a subsequent act passed by the General Assembly of the State of Missouri, entitled an act to revise the charter of the city of St. Louis, and to extend the limits thereof. This last act was approved March 4, 1870.

The first, and, I think, the main question necessary to be considered in this case is: Did this last mentioned statute repeal the section of the General Statutes under which the prosecution in this case was instituted? In answering this question, if we refer to the elementary writers and adjudged cases on the subject, we will find that certain and well-defined rules have been laid down for our government in such cases. It is not pretended in this case, that the law under which the prosecution was instituted was repealed by any repealing clause in the last named act, or in any subsequent act of the Legislature; but it is admitted, that if it is repealed, it was repealed by necessary implication.

In order to the repeal of a statute by implication the rule is, that the implication must be absolutely necessary, in order that the subsequent statute shall have any effect at all. If both acts can stand, and any effect be given to the subsequent act, which is not inconsistent with the former act, the former act is not repealed. Sedgwick in his treatise on Stat. and Const. Law, 127, uses this language: “It has been said that laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject; and it is, therefore, but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any prior law relating to the same matter, unless the repugnancy between the two is irreconcilable; and hence a' repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together.” In our own court this rule has been recognized and followed in several cases. (Pacific Railroad Company vs. Cass county, 53 Mo., 17, and cases there cited; see also, Dwarris on Statutes, 532, 533, and authorities cited.)

Keeping these rules in view, let us now examine the law of 1870 to revise the charter of the city of St. Louis. By the first section of the third article of said act, which confers legislative powers on the Major and City Council of said city, power is conferred to pass ordinances on a great variety of subjects; among other provisions, are the following: “ The Mayor and City Council shall have power within the city, by ordinance, not inconsistent with any law of the State, first, to levy and collect taxes for general or special purposes on real and personal property and licenses,” and then, after conferring a number of other specified powers, thd act proceeds : “Tenth, to license, regulate, tax or suppress ordinaries, hawkers, peddlers, brokers, pawnbrokers, money changers, intelligence offices, public masquerade balls, street exhibitions, sparring exhibitions, dance-houses, fortune-tellers, pistol galleries, lottery ticket dealers, corn doctors, lock, private and venereal hospitals, museums and menageries, equestrian performances, horoscopic views, lung-testers, muscle developers, magnifying glasses, billiard tables or any other tables or instruments used for gaming, theatrical and other exhibitions, shows and amusements, tippling houses, dram-shops, gift enterprises, and to suppress prize-fighting, coon fights, dog fights, chicken cock fights, gaming or gambling houses, and to regulate or suppress bawdy or disorderly houses, houses of ill-fame or assignation.”

We are told, that the language in the last clause of the part of the statute here copied is wholly inconsistent with the law under which the defendant is prosecuted, and necessarily repeals the same. ■ That the language, “ to regulate or suppress bawdy or disorderly houses,” gives the city the power either to suppress or to regulate, as may be thought best, and that to regulate presupposes a continued and permissive existence of the thing regulated. I admit that the word regulate, as used in the law under consideration, presupposes the existence of the thing regulated, but X deny that it presupposes that such existence is either permissive or legal.

By the charter of the city of St. Louis of 1839, the language used on the same subject was, that the cityshould have power “to tax, restrain, prohibit and suppress bawdy-houses,” etc. In that law the authority to tax certainly presupposed the existence of the thing to be taxed; but I suppose that no one will contend, that a legal existence was implied by the authority to the city to tax; and that therefore the law of the State inflicting penalties on such persons was by implication repealed. I do not think that such a construction in either of the cases would be just to the Legislature. I suppose that the Legislature thought, as was argued by the learned counsel for the defendant, that notwithstanding all of the penalties inflicted by the laws of the State against the vice in question, the evil always had and would continue to exist, and therefore recognizing this fact,'authority was given to the city within its limits to regulate, and assist the laws of the State in regulating and restraining the vice, so as, if possible, to modify and not legalize a vice that has always been prohibited and punished, since this country had an existence and wherever civilization prevails.

It is not always safe in construing a statute to take one word used in a single clause thereof, and find the definition of that word, and then attempt to construe the whole law by the particular definition given to that word. We must look to other words employed or used in the law and other clauses of the law relating to the same subject matter and construe them all together, giving each word and clause some meaning, if possible, and we must, in our investigation, see whether words used in one part of the act are used as a qualification of the meaning of other words used in connection with the same subject matter.

In construing the first section of the third article of the charter of the city of St. Louis, passed in 1810, in order to get at its true meaning we must read each separate clause granting legislative power to the city with the first clause of the section prefixed thereto, in the same manner as if the first clause had been repeated at the commencement of each grant of power, or to each subject of power named. To illustrate: In reading the clause which we have been considering we should read : “ The Mayor and Oity Council shall have power within the city, by ordinance not inconsistent with any law of the State, to regulate or suppress bawdy or disorderly houses, houses of ill-fame or assignation.”

The city authorities are here given authority to regulate bawdy-houses by ordinances which are not inconsistent with any law of the State. How, in the nature of things, can this repeal any law of the State ? A saving clause is here inserted in the law, for the very purpose of preventing a constructive repeal of the law of the State. The words “regulate or suppress” are qualified and restricted to such regulations as do not conflict with any law of the State, and we have seen that even without any such restriction, if there is anything at all upon which this law can operate, oflf it can have any force and the State law stand, then it cannot be construed as a repeal of the former law in force at the time by implication.

The Legislature has said to the city: You may pass ordinances to regulate or suppress bawdy-houses, but in so doing you shall not pass any ordinance which conflicts with or is inconsistent with any law of the State. This leaves no room •for repeal by implication. You must look for some method or manner of regulating this evil which will not conflict with the laws of the State, and I insist that many regulations of such houses might be made by the city which would not conflict with the law of the State under which the defendant was prosecuted. The city might enact ordinances prescribing rules requiring the keepers of such houses, under penalties, to close the doors of their houses, and prohibiting them from receiving visitors after a certain hour in the night, or they might be prohibited from keeping any sign over their door or other designation of the character of their house, or the city might by ordinance compel the keepers of such houses to keep a sign or something at their door to designate the character of their house, so that the inmates could be readily avoided by society.

I might name many regulations that could be prescribed by the city for the government of such houses, all of which would be consistent with the laws of the State. And I understand from the rule laid down in the authorities before cited that when this law can have any effect that is consistent with the law of the State, the State law will not be repealed by implication, even where there is no saving or negative clause in the act.

It has been urged, however, in this case that the first part of section 1 of the third article, of the city charter before referred to, is general 'in its terms, while that clause giving the city the power to regulate or suppress bawdy-houses is special in it’s application, and that in such case the special power conferred is to be considered as an exception to the previous general clause. This position might be correct if the facts in the case wotfld justify the application of such a rule; but in this case the rule has no application. This rule can never obtain where the first clause of the act amounts to a limitation or restraint by express terms on the latter clause, and, in the law being considered, both clauses are special. Each relates to the city of St. Louis; one' says that the city of St. Louis may exercise certain legislative authority; the other restrains and limits the same authority to the making of ordinances not conflicting with the laws of the State. Each part of the law only applies to the city of St. Louis, the one having no more general application than the other. In such case, how can it be said that the clause of the act conferring the power on the city is an exception to that clause expressly limiting its operation to subjects not inconsistent with the laws of the State ? This may be the law, but I must confess that my mind has never been instructed in that school of logic which would enable me to perceive, or understand, the reasoning by which such a result is arrived at.

We are referred, however, to the case of the State vs. Binder, decided by this court (38 Mo., 450), as a case in which the very point being considered in this case was decided in favor of the views taken by the defendant, and as being conclusive on the subject. The defendant in that case was indicted under the law of 1855, which made the selling of any article on Sunday, or the keeping open of any establishment for such sale, an offense which was indictable and punishable by fine, &c. It was insisted in that case, that the statute under which the defendant was indicted had been repealed so far as it applied to the citizens of St. Louis county (where he was indicted) by a subsequent act of the Legislature, approved March 4, 1857. By this last act it was provided, “ 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, 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.” There was another section in the act prohibiting the sale of distilled liquors on Sunday, and by the last section of the act all laws and parts of laws conflicting with the provisions of the act were expressly repealed. It was shown in that case, that the city, where the defendant resided, and where the offense was charged to have been committed, had been authorized by the vote of the people required by the law to permit persons to open such establishments on Sunday, and that the city had regularly permitted him to open on Sunday the establishment, for the doing of which he was indicted. It was very properly held in that ease, that after the vote of the people had been properly’given under the statute authorizing the city to permit the opening of the house on Sunday, and after the city had given the permission, the law) under which the defendant was indicted, was thereby repealed. It will be at once seen that that case had no analogy to the one under consideration. The statute in that case expressly authorized the city, after the vote was given, to permit the very act to be done for which the defendant was indicted. This express provision necessarily repealed the act under which the defendant was indicted. The two acts were in direct opposition to each other, and in such case there is no doubt but the general law is repealed so far as the special case is concerned ; but the Legislature did not in that case leave the question of repeal to be decided by construction, but expressly repealed all laws conflicting with the special law.

In the case under consideration, the State law, under which the defendant was prosecuted, was not repealed by any express repealing clause, but, on the contrary, it was expressly provided, that it should not be repealed by implication, by providing in the law, that conferred'the power on the city to pass ordinances regulating the avocation of the defendant, that no ordinance should be passed that was in conflict with the law of the State. I cannot therefore see how the case of the State vs. Binder can justly or properly be relied on by the defendant as an authority in her favor. In my judgment the law relied on by the defendant did not confer any power on the city to pass the ordinance relied on by the defendant as a defense to the prosecution against her. I will not attempt a discussion of the questions, raised and so ably argued by the attorneys on the argument of the case, as to the constitutionality of the ordinance passed by the city and relied on by the defendant. I have neither the time nor the ability to do so, nor will I attempt to discuss the policy adopted by the city for the purpose of regulating the evil to which it refers. It may be, that there are some offenses usually prohibited and punished by law, that are so blended and interwoven with human nature that it would be better to adopt some policy by which they could be regulated and controlled, than to attempt to entirely prohibit and suppress them; and it may be that the occupation of the courtesan is one of them. I should be rejoiced to know that some plan had been discovered by which such an evil to society could be mitigated ; but with that we have nothing to do in the decision of this case. I have no inclination to enter into a discussion of such a subject on this occasion, my only object being to give a reason, which is at least satisfactory to myself, for reluctantly withholding my assent to the judgment and decision rendered in this ease by a majority of the court.

In this opinion Judge Sherwood concurs.