Ex parte Bedell

Ellison, J. The question involved here is as to the validity of the ordinances of the city of Mexico known as the dram-shop and recorder’s court ordinances. If these are void, the petitioner is entitled to his discharge, for in such case the recorder had no jurisdiction, and his proceedings, from beginning to end, were without authority, and utterly void. The principal objections urged against the validity of these ordinances are, first, that they have not been recorded; second, that they were not published in any newspaper in the city of Mexico, as provided by the charter ; third, that they were not enacted in accordance with any rule or regulation provided for legislation by the city council; fourth, that they are in conflict with the policy of the law of this state, in so far as they authorize petitioner to be worked on the public streets. Section seven of article one, and section thirty-one, article six, of the city charter, are as follows: [129] “Section 7. All official acts of said city shall be in conformity to ordinances previously and duly enacted ; and all ordinances, orders, and resolutions, before such shall be in force, shall be signed by the mayor, or other person acting as such at the time, and published and duly recorded in a substantial book, to be provided for that purpose, and according to such ordinances as may be enacted, providing rules for legislation, and the performance of the duties of the several officers of the city.” “Section 31. All ordinances of the city shall be passed pursuant to such rules and regulations of the board of the city council as that body shall provide, shall be published in thirty days thereafter in some newspaper published in the city of Mexico; and shall not be in force until so published, and they may be revised and published in book or pamphlet form, at least once in five years.” Under these sections of the charter, I am of the opinion no ordinance would be valid without its first being signed by the mayor proper, or pro tempore, recorded and published. 1 Dillon’s Municipal Corporations, sect. 331. It does not follow, however, that an ordinance would be invalid because not enacted in accordance with a rule or regulation provided by the council. Attention to the phraseology of these sections will show that they are not intended to be mandatory, except as to the ordinances being signed by the mayor, recorded and published. That they shall be passed in accordance with the rules first prescribed, is directory merely. It was not intended that an ordinance, otherwise legal and regular, should be invalidated merely from the failure to follow some regulation theretofore made by the council. Moreover, it has been held that the validity of a statute duly authenticated, cannot be impeached, by showing a departure from the forms prescribed by the constitution. Pacific Railway v. The Governor, 23 Mo. 353. And this principle is applied to ordinances of mu [130] nicipal corporations. Ball v. Fagg, 67 Mo481; City of St. Louis v. Foster, 52 Mo. 513. The question in the case remains, were these ordinances signed, recorded and published, within the meaning of the charier ? It appears that both the dram-shop and recorder’s court ordinances were originally passed and recorded several years prior to the revision of 1883, and that they were incorporated bodily into this revision, but not again recorded. It is admitted that the dram-shop ordinance, as originally passed in 1881, was signed by the mayor, and was duly published in a weekly newspaper, published in Mexico, Mo., within thirty days after its passage. The recorder’s court ordinance was published by being printed in St. Louis, and circulated in Mexico, Mo., with, and as a part of the local paper at that place. The recording of the ordinances when they were originally passed was a sufficient compliance with the law. It was not intended, or contemplated by the charter that they should be recorded at each successive revision. By virtue of chapter twenty-six of the ordinance revision of 1883, only such ordinances were repealed as were repugnant to, or inconsistent with, those incorporated in the revision. Those that are the same, or that part of those which is the same as those in the revision, are declared to be a continuation of the ordinances theretofore existing. And such, indeed, would have been the law without this enactment. City of St. Louis v. Alexander, 23 Mo. 483, 509; City of Cape Girardeau v. Riler el al., 52 Mo. 424; State ex rel. v. Heidorm, 74 Mo. 410. It will, of course, be seen at once that if the ordinances date from their original passage, and are not affected by the revision, it would be idle to again record them. What is said in regard to the recording will apply with equal force to a republication. There is no reason or necessity for either. The fact that the recorder’s court ordinance was printed in St. Louis does not affect its validity, since it was “ published” in Mexico. It was a sufficient publica [131] tion to circulate it with the local paper as a part thereof. Many newspapers are now printed at places distant from the place of their publication. The place of printing has no necessary connection with the place ‘pi publication. The dram shop ordinance, and the recorder’s court ordinance, as they appear in the revision of 1883, are valid, and of binding force, in the city of Mexico, and, under the provisions of sections eleven and twelve of the recorder’s court ordinance, it is adjudged in the first instance, that in default of the payment of the fine and costs, the defendant shall labor upon the streets, or alleys, or other public works in the city. There is but one adjudication necessary, and but one is contemplated by the charter and ordinances. If a defendant should pay the fine and costs assessed, and yet be compelled to perform labor, he would then be in a position to demand his release on habeas corpus. It is urged in behalf of the petitioner that the punishment being inflicted upon him is cruel and unusual, and that it is contrary to the general policy of the law in this state. I cannot concur in this view. There is no statute forbidding it in this state, but, on the contrary, inflicting it in certain contingencies. It is specially authorized by the legislature, as is seen by reference to section twenty-nine, of article six, of the charter of Mexico. There are other matters urged before us not necessary to refer to in detail, we have given all the petitioner’s complaints and objections careful consideration, and can find nothing to justify this court in ordering his release. He has brought his troubles upon himself by a disregard of the laws he should have obeyed. He should have weighed the consequences in the first instance. He who sows the wind shall reap the whirlwind. It is, therefore, ordered that petitioner, the prisoner, be remanded to the custody of Andrew J. Súber, street commissioner of the city of Mexico, Mo., there to remain until discharged by due course of law, as if the [132] writ in this cause had not issued. Philips, P. J., concurs. Hall, J., absent.