St. Paul daily globe., 1892-04-27
One Thousand Odd Fellows
Parade and Two Thou
sand Hear Speeches.

But while this pTOvisO Is bad, ii does
| not follow that this prosecution can
stand. Tie new ordinance amends sec
tions and Il of the old one 50 as to
/ read IL the manner specified: and upon
tile enactment OF the new ordinance,
the old one. So far as contained in these
sections. became merged in the new
| ordinance. and are 40 longer in force as
/ regards future transactions and prose-
cutiOns. SOme provisions OF tile new
ordinance are no doubt valid, and espe-
cially that part relating 10 the return OF
license moneys for tile uneXplred term.
| But the prOYlsO being Invalid, all or the
ordinance dependant upon it Is also bad.
| And hold that all of the Rand ordi-
nance which constituted section . OF
| the old ordinance is dependent upon,
and inseparably connected with this IN
valid portion; and this being 50 this
action will have 10 be dismissed. IL
| does not appear that the council would
| have enacted any OF the ordinance
which preceded tkis proyiso had they
understood the latter portion to be In
! valid. Such is my decision. But | am
| willing, of course, TO hear the city at
| tOrney further upon this point, pro-
| yided lie desires it,"
Mr.. Dunn then said he would like 10
be heard further, and il was agreed that
the ease be continued until Thursday at
p. m.
This decision of Judge Elliots, or
more especially his verbal holdings.
will create a peculiar state OF al
fairs, inasmuch as II practically
! knocks out the city liquor
ordinance altogether and causes re-
| version to the general laws OF the state.
| The judge has investigated the matter
thoroughly. and 1t Is very probable tEat
| he will hold TO his findings when the
| question is argued again tomorrow.
| The city saloon ordinance Will be
| knocked out. therefore, frCm the fact
that the Rand amendment was made
TO section of the old ordinance, which
provides for the regulation Of and pros
ecutiOn Of those who sell liquors He
gaIly. 1t was re-enacted in the new
ordinance. and so when the entire sec
ton is declared invalid il also inyali-
dates the old one, necessitatug all
cases hereafter to be prosecuted under
the state law through indictment by the
grand Jury. IL seems that Judge Eli
oft does not agree with the supreme
court that provision of Il section or or
dinance can be stricken out. leaving the
remainder Of the ordinance OF section
valid. In declaring against the entire
section the Judge also made ruling oil
a matter that did not come up for argu-
ment at all. The argument was made
Oh the provision referring to the making
of arrests for violating the Sunday or
dinance by police officers alone. AS
stated before if lie holds to his findings
the city is left in the condition that it
was three years agO-wlthOut saloon
ordinance. 1t will puzzle the SO-called
fnr lln
be thrown out of court. In referring TO
| the Rand amendment TO his decision
the Judge says:
This proyisO confers no power and I'M
| poses no duty. II is purely restrictive upon
| the public al large. Prior 10 the passage OF
this ordinance 1t was the duty OF the
! police officer and of every citizen rs well
10 make complaint OF known yio-
| lation of any law. state or municipal
J The duty OF the officer is in no way changed.
| while the citizeu is deprived OF what, during
| the entire history OF common law, has been
| not only a right and privilege, but moral,
ana in many cases legal duty
The decision then goes on to say:
This court will hesitate long before hold
| ing Invalid any ordinance which the wisdom
| OF tie city council has decided to be for the
best interests of the community. Every pre-
SUMPTION is in favor OF the validity OF THIS
| ordinance, and the motives of the council
| cannot be here impugned. The members OF
| the council are presumed TO nave Deeu
| actuaied by the highest motives, and so in-
| fiuenced to have acted III Il way which To
them seemed conducive to The public good.
But city councils sometimes mistake their
| powers and while, as has been said by the
! supreme court of Minnesota: 1T is an un-
| grateful task for courts TO be thus continu-
| ally declaring municipal ordinances void. but
il is inevitable, so long az the municipal
| authorities continue to enact them without
| the least regard to elementary lie al proys-
ions Moore VS.. city Of St Paul, 81 y. w.
! Rep $50.
Although the court cannot inquire into the
| motives Of the council. It. must necessarily
| consider the effect Of the ordinance under
consideration, and its conformity to the gen
| eral policy OF the legislation or the state.
The effect of this amendment can only be To
| render the making of complaints more diff
| ncult and the breaking of laws less danger
Gus. The council has not changed or at
| tempted to change the nature OF the cfense.
| What was contrary to law before its passage
| is illegal now. Then the citizen might enter
a complaint If he knew OF violation OF the
| ordinance, while now, II this amendment Is
valid. person may Violate the law and be
free from prosecution except DpOn the in
| itiatiVe of certain class. although the entire
community may be perfectly aware that
the law is beng openly violated. ! do
not believe that the city council has
the power TO confer upon any man, or
set of men, TO the exclusion of all
law snail be punished, and when the offend
er snail be uumolested. The power 10 enact
such radical measures TO place the police
men above the law, to invest him with the
dispensing power, if il exists. must be found
in an express grant of legislative authority
There is no question but what such power
exists i'll the legislature OF the state, which Is
the direct heir OF the legislative Omnipotencc
of the British parliament, subject 10 sucr
limitations as are found in the constitution
Of the state and the United States. 1t has
been exercised in Wisconsin and in Massa
chuSetls, and has been incorporated i'll the
| constitution of Missouri; but am not aware
that there can be found a single decision III
volving the question of the power of ii mu
nicipal corporation 10 exercise such author
ty without an express legislative grant
| Municipal corporations have no inherent
| legislative power. They are the creatures OF
the Legislature and subject TO Its absolute
control To them is delegated such portions
of the legislative power as i'll the judgment
of the legislature is desirable 10 secure local
Selfgovernment. The charter is lhuS the
measure of the powers of the corporation. In
other words, the council as the legislative
body of a municipal corporation, acting as
the agent of the legislature for certain spe-
cited purposes, can do what the charter in
vests il with power to do ana nothing more.
AS classified ty Judge Dillon, and adopted
| by myraids of decisions, such powers are U)
those granted in express words 90 those
necessarily implied in and incident 10 the
|
TO the declared objects and purposes of the
corporation, not simply convenient, but in-
dlSpenSable. IL Is also well-eSteblished
rule that grant OF power which affects per-
sonal rights or privileges must be strictly
construed against the CORPORATION and III fa-
yor of the citizen.
The form of the city charter shows its
nature. Aftera general statement of the OBJ
jects for the accomplishments of which ordi-
nances may be passed, we find detai.e d
statement OF the specific purposes for which
ordinances may be passed The general
ant of power is thus limited by an enumer-
alton of particulars. Expressio unius est
excIusio alterius
If this ordnance is valid the duty thus cast
upon the judges can only be performed upon
the condition of first Obtaining the consent
| of a police officer.
That part OF the"Rand amendment which
provides that No prosecution shall be COM
meuced for any violation of this section or
any provisions Thereof, except upon com
plaint of police officer OF said city, i" is void