State v. DeBar

Lewis, Judge, delivered the opinion of the court. The defendant was prosecuted by information and convicted under the general statute, which prohibits the keeping of bawdy houses. (Wagn. Stat., 502, § 19.) Her appeal to this court is based upon an assumption that the statute is not operative within the limits of the city of St. Louis. The aet amending the city charter, approved March 4, 1870, authorized the passage of ordinances, not inconsistent with any law of the State, for a great variety of purposes, and [397] among them “ to regulate or suppress bawdy or disorderly houses, houses of ill-fame or of assignation.” The amendment enacted March 30, 1874, repealed the terms of this special authority, substituting the words, “ to suppress (but not license) bawdy or disorderly houses, etc.” The question before us must be answered by an application to these charter amendments of the following statutory provision, (Wagn. Stat., 894, § 3): “ When a law, repealing a former law, clause or provision, shall be itself repealed, it shall not be construed to revive such former law, clause or provision, unless it be otherwise expressly provided.” If, within the meaning of this provision, the charter amendment of March 4, 1870, operated a repeal of the general law, in its application to the city of St. Louis, then the repeal of that amendment by the enactment of March, 30, 1874, did not revive the general law, but left it still inoperative within the same city limits. And in that case, the defendant was wrongly convicted. The decision rendered by this court, in State vs. Clark, (54 Mo., 17) is conclusive of the premised condition. As the judges then and now on the bench, were divided in opinion, it seems proper to say, that a majority of the court, as at present constituted, adheres to the conclusion then announced. The reasoning of the chief opinion is, in my view, unanswerable,’ if English words have determinate meanings. The legal issue in that case, turned upon the import of the word regulate.” If the legislative authority given to the city corporation to regulate bawdy houses, was inconsistent with a law which wholly prohibited their existence, then one law necessarily annulled the other, for both could not stand together. I cannot conceive a harmony between one rule which says a thing may be done in a particular way, and another which says it shall not be done at all. The mind would revolt from a law “ regulating ” murder or theft. And this only because it would imply that the act might be committed, if done in ‘ conformity with, the prescribed' rules. The municipal ordi [398] nances and the State statutes are from a common source of authority. One class presents it in a delegated, and the other in a direct form, hut it is the power of the State which speaks in both. If that power says to the bawdy house keeper, “ You must keep a sign over your door, otherwise you shall be punished ; ” and, in the same breath says, “Your house shall not exist at all, sign or no sign,” there is a manifest incongruity somewhere. In order to enforce any “regulation,” it is first necessary to ascertain that the subject of .treatment is a bawdy honse. And when that is done, a co-existent absolute prohibition renders the idea of regulating an absurdity. We are thus driven to choose, between irreconcilable utterances, which shall prevail. When once the fact of conflict is assented to, tlie rule for settling the supremacy is simple enough. The general must yield to the particular provision. The statute law of prohibition is general; the charter authority is particular and special in its operation, and must therefore prevail over the former. But a supposed difficulty is suggested in the charter amendment itself, which permits only ordinances to be passed “ not inconsistent with anyiaw of the State.” The rule just mentioned, easily disposes of this. The grant of power to pass ordinances, with its qualification, constitutes a general provision adapted to an infinite variety of objects of municipal legislation. The power to regulate bawdy houses is special and particular in its application to a single object. If there is inconsistency between the two grants, tlie latter must prevail. The rule has had numerous illustrations in former decisions of this court. In City of St. Louis vs. Alexander, (23 Mo., 483) a special act, approved March 1, 1851, had authorized the city to subscribe for stock in the Ohio & Mississippi R. R. Co. A charter provision which had long been in force, and which was re-enacted March. 3, 1851-two days after the special act — was in these words: - The city shall not, at any time, become a subscriber for any stock in any corporation.” Here was a palpable inconsistency. The Supreme [399] Court gave full effect to the special authority ; thus annulling as to its particular object, the general prohibition. In the case of State ex rel. Vastine vs. McDonald, the general law required that public administrators should be appointed by the courts having probate jurisdiction in their counties, respectively. A special law provided for the election, by the people, of that officer in St. Louis county. The latter law was held to control the case. There seems a peculiar fitness in the application of that decision to the present ease, raising from the fact that a revisory enactment operating upon both those laws, had provided, in effect, that “ acts of a private, local or temporary nature,” were continued in force, if not “ repugnant to the provisions of the general statutes.” This feature completes a parallel with the charter amendment before us, authorizing ordinances “not inconsistent with any law of the State.” In either case, the special grant overrides the prohibitory reservation, as well as every other law expressed in general terms. Reference is made to Baldwin vs. Green, (10 Mo., 410) and other eases, in which it is held that the grant of certain powers to a municipal corporation, does not necessarily hinder an exercise of the same powers by the State, through other agencies. They have no application to this case, in which the several powers under consideration are held to be different, and in their natures impossible to be exercised at the same time and on the same objects. It is objected, that repeals by implication are not to be favored. But this doctrine has usually been applied where the effort was to repeal a special provision by implication of a general statute. The contrary application is attempted here, without the sanction of any fitting precedent, so far as I can learn. It follows that the decision in State vs. Clark, is here re-affirmed ; and, that, consequently, the general law upon which this information was based, is held to have been repealed within the city of St. Louis, by the charter amendment of March 4. 1870. It follows, further, that this repeal of the general prohibition remains in force — the operation [400] of the statute herein quoted preventing any revival by the alteration of the charter made on March 30, 1874. The consequences, whatever they may prove, belong to the legislative, and not to the judicial authorities. There appears to be no question as to the power of the city legislature to suppress the evil complained of- — so far as human laws may do so, -within constitutional limitations — by virtue of the amendment last referred to. The judgment below is reversed; Judges Napton and Wagner concur; Judges Vories and Sherwood dissent.