The St. Louis Republic. [volume] (St. Louis, Mo.) 1888-1919, 1903-12-10

IL not PUBIC work. as contemplated by
section q. we confess the term public
| work is not susceptible of a definition. II
is not only public work. but 1t is of the
most important character. and requires
for the protection of the city that. the
performance of il be under The SUPERVISION
OF the most skilled anu experionccd Of
ticers connected with the c:y government.
CARRIAGE CONTRACT.
1t is next insisted that this is not pub
lie work. for the reason that the contract
IS not for the building of the plant or
works by which the garbage Is dispose ed
OF. 1t is true the city does not pay for
work: but II certainly will not be disputed
that the city does pay for the work done
through the operation of the machinery.
The disposal OF the garbage for the city.
whether done by machinery. or hauling
and dumping in the Mississippi River. is
the performance of public work.
IT is next urged that the removal and
ly accommodating in a large and populous
city is a matter which clearly falls under
the jurisdiction Of the Health Department.
that there is not an utterance: or even an
fntimation. In single provision under
which It is claimed that this power was
vested In the Board OF Health. which au-
thorizes 1t to contract for the performance
OF any character or species of public work;
And It Is apparent that the provisions of
the Charter herein quoted in respect t" the
prevention Of the spread of contagious dis
eases una the eStaDllSnment OF a SdHltdIy
system. does not contemplate. nor did the
trainers Of the Charter entertain any such
purpose, the exercise Of the power to au-
thortze the Board of Health to contract
for the performance of public work.
1T is also argued that the reduction of
the garbage of the city is not public
work Of a constructive nature susceptible
Of improvement or repair Is there any
the trainers Of 1t intended the use Of the
term public work to be restricted to work
Of constructive nature? None that we
can discover.
I'VE must keep in view the positive and
broad Language employed in Section n
of this Charter. The Assembly shall have
lie work or improvements or. repairs II
will be noted that the general term pub
lie work does not follow the terms i'm
provements or repairs. but precedes them.
the recognized rule of construction which
requires that. where a particular class IL
spoken of. and general words follow. the
MOST eomnrehensive and u pc the general
words treated as referring to matters
ejusiem generis with such class cannot
- Custom IS NOT LAW.
ut may be said. and 1t is argued. that
the construction given this Charter by the
departments of the city government. and
SO given that the power was granted by
the Charter to authorize the Board OF
Health this contract, would Justify the
powers exercised In this case. The recos-
Legislature or the provisions of Charter.
for any length Of time. cannot have the
effect to legalize 1t. Doubtless. many stat
utes can be recalled that have stood undis,
turbed for years. and were acted upon and
acquiesced in by the public; but. when at
last the test Of their legality was applied
they, were declared imperative and illegal.
"Iflis construction and acquiescence in
ma he n n
conclusion as to the power granted. but
the absence Of power can never be sup
piled by construction or acquiescence.
"It Is important to keep in view the real
questions presented. The proposition We
did not emanate from the Board of Public
mary Pso step Affecting the Validity Of the or
dinance; but the proposition involved is
more far-reaching; 1t challenges the exer-
else OF the power to let contract for
asserts that the only power to contract for
public work as contemplated by section y
Of the Charter is vested in the Board Of
Public Improvement.
Again. the question as to the official
position Of Chapman is not involved. No
one cOntr0verts the fact that he was a
member Of the Board of Health. The ques-
ton as to whether he was an officer de
jure or de factO is not before us. but the
sole and only question involved in this
proposition is. as a member Of the Board
upon him by law which required him, in
his ofiicial capacity, to act in the matter
Of letting the contract for the doing of
1.-The adoption Of the ordinance intro
1uced in evidence. being the exercise of |
, power. not granted by the Charter. was |
Invalid. From this 1t must logically fol-
The time of the alleged attempted bribery |
which required Doctor Lsapman, in his |
official capacity as a member Of the Board |
u Health. to pass upon the question of |
citing the contract for the public work |
10 be performed for the city
I'VE have reached the conclusion that |
he absence nf this essential element of
nent.. and thst the facts disclosed by the
'ecord fail to bring It within the terms of |
he statute upon which this Indictment
S predicated.
United States VS.. Boyer. supra, was no:
direct proceeding to invalidate the act |
Il Congress creating the office and author
ztng the Government officers to perform
{ was simply criminal prosecution for
bribery Of a public official. vet il was held
~ Judge Rogers in that proceeding. that
he act of Congress was in violation of the
Hence there was no law
equiring the performance OF any duty
ng to influence the action of the officer.
This brings US to the consideration of
he last proposition in this cause.
DATE OF OFFENSE.
Counsel for defendant urge that, even
hough the Municipal Assembly Of the
ity Of st. Louis had the authority to en-
Ict ordinance No. 20476. and that the con-
ract was not void because it was not