State v. Clarke

1. Social evil ordinance of St. Louis valid. — General law repealed by charter.— The power given to the City Council of St. Louis, under the municipal charter of 1810, Art. Ill, \ l,(Sess. Acts 18Y0, 463-4) “ by ordinance not inconsistent with any law of the State ” * * “ to regulate bawdy houses,” operated as a repeal of the General Statute prohibiting them, in respect to the city of St. Louis. And a city ordinance lioensiug them is valid, under the charter, notwithstanding the general inhibition of the statute, and a license taken out in conformity with the ordinance will shield them from criminal proceedings by the State. Such ordinance is not void as against public policy or good morals. The best indication of public policy is to be found in the action of the Legislature. And there is no warrant to suppose that the law had any other purpose than the promotion of morality and health to the citizens. 2. Constitution — Law unconstitutional in part not wholly void. — Unconstitutional provisions of a law do not render it void as to other and independent provisions. Per Tories L, Dissenting, Sherwood J., Concurring. 3. St, Louis, charter, granting, authority to regulate brothels^not a repeal of gener. al law. — Section 19, Art.VIII, Ch. 42 of the Statutes of Missouri (W. S., S02), prohibiting bawdy houses, is not repealed by the Charter of the city of St. Louis of 1810, Art. Ill, § 1. (Sess. Acts 1810, 463-4.) The general law prohibiting and the special law regulating brothels are not inconsistent.

Appeal from St. Louis Court of Criminal Correction. I. The Charter of the City of St. Louis gives the City Council power by ordinance, to “regulate or suppress” bawdy or disorderly houses, houses of ill fame or assignation. It is evident, that the Legislature intended to give the City Council power to control bawdy houses. And this power includes the idea of permissive existence. Under the power to “regulate commerce,” Congress has full and entire control of the whole subject as a unit. The power not only includes properly the subject of commerce, but also all the necessary vehicles and appliances necessary to carry it on. (2 Sto. Const., 510, § 1061; (ribbons vs. Ogden, 9 Wheat., 1; Brown vs. Maryland, 12 Wheat., 419.) It is true, that by the general law, the keeping of a bawdy house is prohibited, and the charter provision amounts to a repeal of the gfeneral State law, so far .as the City ofSt.'Louis is concerned. (State vs. Binder, 38 Mo., 450.) In the case of Binder, the right of the city to exercise the power depended upon a condition of a majority vote of the legal voters. In the present case, if the power be contained in the word “ regulate,” the city is invested with the power without condition. With this exception, the cases appear to be the same in principle. ' The case of the City of St. Louis vs. Laughlin, does not apply here. The question decided in that case was,whether the general clause giving power to said city to tax “ all other business, trades, avocations or professions whatsoever” included lawyers. In this grant of power, which we are considering, bawdy houses, assignation houses, and houses of ill fame, are expressly named. I. The ordinance in question undoubtedly permits and authorizes bawdy houses to be kept in this city under certain restrictions. , The first question to be considered then, is, whether the city charter authorizes the City Council to pass such an ordinance as Ch. XIY. of the ordinances of the city of St. Louis, or so much of said ordinance as, under certain restrictions, permitted defendant to keep said house. The term “ to regulate ” as used in this charter, in every place where it is found in this section, is of broad and uniform significance, and means nothing else than to prescribe the rule by which the subject to which it relates is governed.' And in the law generally it has this significance. Where the term is used in the Constitution of the United States, it has this meaning. Just such authority with reference to bawdy houses was never conferred by any previous charter. It has been laid down as a rule of interpretation of statutes, since the days of Lord Coke, that in order to arrive at the meaning of the act under consideration,we must consider what the law was before the mischief, the remedy, and the true reason for it, which he says is • the very lock and key to set open the windows of the statute. (1 Bish. C. L., 566.) The first charter of St. Louis,where any authority was expressly given on this subject,was that of 1822, when St. Louis was yet called a town. And in that charter the only power given was “ to restrain and prohibit. ” (B. 0.1866, p. 4, § 12.) In 1835, the charter was revised and amended by the Legislature, and the same language was held. (B. O. 1866, p. 48, § 32.) In the year 1839, a new act of incorporation was passed, in which the authority given, with reference to houses of prostitution, is to tax and prohibit. The exact words are: “ To tax, restrain, prohibit and suppress tippling houses, dram-shops, gaming and gambling houses, and bawdy and other disorderly houses.” (B. O. 1866, p. 56; § 1, sub-sec. 23.) And again in 1841, upon the amendment of the charter, the same language was held as in the charter of 1839. In 1843, an act passed the State Legislature and became a law, under which the only authority given to the city over bawdy houses was to suppress them. (B. O. 1866, p. 75, (Art. 3, § 2, sub-sec. 22.) And the same is true of the revision and amendment of the charter in the years of 1851 and 1867. But in the year 1870, the present charter of the city of St. Louis was adopted, and in it the Legislature gives the city power “ to regulate ” or suppress bawdy-houses. This is a marked change. Now if we apply our rule of interpretation, much light is let in as to the evident intent of the Legislature in making this change. From the time when St. Louis was a small town, (1843,) and until 1870, a uniform system of forcible repression only had been authorized ; but in 1870, when the city had acquired such importance and dimensions, and when all legislation in regard to it was of such vital interest, a radical change concerning this whole subject was made, if we are to take language in its usual and legal sense. The term “ to regulate,” as used in this charter with reference to bawdy houses, means to prescribe the rule by which they are to be governed. Whenever this word is used in the charter, it has this meaning, and it cannot have • one meaning in all other parts of the charter (and it is a word of frequent occurrence), and a different meaning in this solitary instance, as applied to houses of ill-fame. The popular and usual meaning of the word is the same as above defined. Webster’s definition is : “Begulate : to adjust by rule; method or established mode ; to direct by rule or restriction; to subject to government, principles or laws.” “Begulation : a rule or order prescribed for management or government.” Worcester’s definition is substantially the same. The term regulate has also received judicial notice. And the Supreme Court of the United States, in interpreting that clause of the national constitution, which says : “ Congress shall have power to regulate commerce,” &c., says, that the word regulate, as used in that connection, means to prescribe the rule, by which commerce is to be governed. (9 Wheat., 146 ; Sto. Com. Con., § 1061; Dwar. Stat., 274 and n.) II. But it is said, that the general words, with which article 3 of the charter of St. Louis is headed, are to govern this term, “ to regulate,” in a subsequent special clause of said article. The general words are as follows: “The Mayor and City Council of the City of St. Louis shall have power within the city, by ordinance not inconsistent with any law of the State,” to pass ordinances, &c. Now, this same general clause, which I have just read, was in the previous charter of St. Louis — that is of 1867. But this word “ regulate,” with reference to bawdy houses, was not in that charter. The only power therein given (in the charter of 1867) was to suppress. The Legislature, in passing the city charter of 1870, must be presumed to have had these general words in mind, when they amended the charter by introducing the special clause, giving the City Council power to regulate, as well as to suppress, bawdy houses, &c. If the Legislature did not intend to give the city the power over this subject, that it did over every other subject which it gaye the city power to regulate, why did it not leave the law as it was ? The city had power under the charter of 1867 to “suppress” bawdy houses. And can it be conceived, while we are seeking for the legislative intent of this matter, that the Legislature amended the charter of 1867, in this marked and emphatic manner, to still give the power only to suppress these houses, a power which the city had before? III. The general words in one clause of a statute may be restrained by the particular words in a subsequent clause of the same statute, where a general intention is expressed, and the act also expresses a particular intention, incompatible with the general intention. The particular intention is to be considered in the nature of an exception. (Dwar. Stat., 110,117, 160, 273 ; Sedg. Con. & Stat. L., 423, 61,133; Rex vs. Archb. of Armagh, 8 Mod., 5 ; Churchill vs. Crease, 2 Moore & P., 415 ; 5 Bing., 180; Bishop Stat. Crimes, 126, and n,; State vs. Binder, 38 Mo., 450 ; State vs. Macon Co. Court, 41 Mo., 453; 47 Mo., 146.) This interpretation will give effect to this special clause of the charter and reference to houses of ill-fame, and it cannot be denied, that it is a special clause, and that it is subsequent to the general words at the beginning of Article 3 of the charter. And the said charter ordinance being irreconcilably inconsistent with, and repugnant to, the State law; and the charter, being a special act of the Legislature, and passed subsequently to the State law, we claim, repeals the State law by implication. (51 Mo., 420; Deters vs. Benick, 37 Mo., 597; 47 Mo., 29; Yastine vs. Probate Ct., 38 Mo., 529; 47 Mo., 146 ; State vs. Macon Co. Ct., 41 Mo., 453; St. Louis vs. Alexander, 23 Mo., 483; Tierney vs. Dodge, 9 Minn., 166; State vs. Binder, 38 Mo., 450; 1 Blackst., 89 ; State vs. Morristown, 33,N. J., 57; State vs. Branin, 3 Zabr., 484; State vs. Clarke, 1 Dutch., 54; State vs. Jersey City, 5 Dutch., 170 ; In re Goddard, 16 Pick., 504; Dill. Mun. Corp., § 54, and n.; Ang. & Ames’ Corp., 333; Cooley’s Con. Lim., (2nd Ed.,) 198 ; Comm. vs. Patch, 97 Mass., 221; St. Louis vs. "Weber, 44 Mo., 547.) And.a city may pass ordinances inconsistent with the general law of the State, where the power to do so is clearly given in the special act of incorporation or charter. If the charter contravenes the general laws of the State, so may ordinances do the same to the extent authorized by the charter, and they will be valid. (Cooley’s Con. Lim. 198, and n. 3; Dill. Mun. Corp., § 54 and n.; 1 Bish., C. L., § 58, and n. 3; State vs. Binder, 38 Mo., 450.) IY. It cannot be objected to as of supposed immoral tendency, because that is a matter for the Legislature to consider. If a law is passed, and it contravenes no provision of the constitution, State or national, it cannot be overthrown, because in the opinion of a court it is of questionable morality. (Sedgw. on Stat. Con. L., 180 to Í88, and cases cited; Cooley’s Con. Lim., 169 and n.) 1. The ordinance, under which the defendant claims the right to carry on and maintain a bawdy-house in the city of St. Louis, is no legal defense to this action; because such ordinance is against religion and good morals; because it contravenes the statute law of the State; and because it is against the spirit of the common law and constitutional law of the land. The city council had no right, power or authority, from the wording of the city charter, which merely says, “ to regulate or suppress bawdy or disorderly houses, houses of ill-fame or assignation,” to license such houses, and, for the payment of taxation, to protect them in the carrying on of their nefarious calling. The words “ to regulate” give the council no such sweeping power. (City vs. Laughlin, 49 Mo., 559.) An ordinance to be effective must be in accordance with the statute and common law of the State, for it has been so repeatedly declared. (Sedg. Stat. and Const, law, 313.) But this ordinance would not only alter, but entirely do away with the common and statute law of the State at one “ fell swoop.” II. The city council in the making of ordinances has no power to transcend the authority given it by the charter. (Sedg.. Stat. and Const. Law, 467, 469; Halstead vs. The Mayor of the City of N. Y., 3 Com., 431.) III. A license, as applied to the case at bar, is a contract between the city of St. Louis and the defendant, wherein it is agreed, that for the consideration of a certain sum of money to be paid to the city as taxes, that the city will authorize, license and protect defendant and all of her class, who take out such licenses and pay such taxes, in the carrying on of-such bawdy-houses, or houses of ill-fame within the city. Such a contract cannot stand. For all contracts founded on considerations contra boros mores are void. (Sto. Cont., (2d Eev. Ed.) §§ 541, 542; 2 Kent’s Com., 466; 2 Hill, 434.) IV. But the offense, with which the defendant is charged, is a wrong in itself, and no human legislation can make it right. It always has been prohibited, and was held to be a misdemeanor by the common law of England, as being against Divine and moral law, and such doctrines of the common law for the prevention of this and kindred vices were brought over to this country by the early colonists; and so well established is the law for the prevention of keeping bawdy houses, the punishment for adultery, fornication and like offenses, that although not written in the constitution, I might say, that by common consent they have become part of the constitutional law of the land, for we find in almost every State of this Union similar laws to the one for the vioation of which the defendant stands charged. I. The ordinance of July 10, 1871, as a whole, is “repugnant to, aud irreconcilable with, the general law of the State with reference to bawdy-houses.” The grant of legislative power to the city on this subject is contained in these words, and none other, in the city charter of March 4, 1870, viz: (Sess. Acts 1870, p. 463.) Article III. Section 1. “ 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, «fee., «fee. * * * * * (Sess. Acts 1870, p. 464.) Tenth, to license, regulate, tax, or suppress ordinaries, hawkers, «fee., «fee., * * * * * and to suppress prize-fighting, «fee., «fee., * * * * * and to regulate or suppress bawdy or disorderly houses, houses of ill-fame or assignation.” But if the ordinance was inconsistent with, and repugnant to, the State law — as claimed by the defendant — then the ordinance was ultra vires and void. (Dill. Mun. Corp., §§ 55, 251, 300, 353, aud many cases cited ; also cases cited infra, from Mo. Reports. II. The State law in question (1 W. S., 502, § 19 ; W. S., Chap. 42, “Crimes and Misdemeanors,” Art. YIII, § 19,) was not repealed by implication, either by the tenth clause of § 1 of Art. Ill, of the Revised Charter of 1870, (Adjd. Sess. Acts 1870, p. 464, above quoted,) or by the enactment by the May- or and City Council, under, and (as alleged) in pursuance of, this charter power, of the ordinance of July 10, 1871. 1. “ Repeals by implication are not favored or allowed, unless the first act be so inconsistent, as not to stand with the subsequent act.” (Glasgow vs. Lindell, 50 Mo., 79 ; State vs. Macon Co., 41 Mo., 459 ; St. Louis ys. Alexander, 23 ib., 483; Sedg. Stat. Const. Law, 127 and cases cited; Bowen vs. Lease, 5 Hill, (N. Y.,) 221; Brown vs. Co. Comrs., 21 Benn., St., 37; Williams vs. Potter, 2 Barb., S. C., 316; Comm. vs. Herrick, 6 Cush., 465 ; Pot. Dwar. Stat. ; City of St. Louis vs. Laughlin, 49 Mo., 559.) Municipal corporations can exercise no powers not granted either expressly, or by necessary implication, in their charters ; and that any reasonable doubt, as to existence of an alleged power, must be solved against the corporation. (Buggies vs. Collier, 43 Mo., 375St. Louis vs. Clemens, Id., 404 ; Hitchcock vs. St. Louis, 49»Mo., 488; City of St. Louis vs. Laughlin, 49 Mo., 559; Dill. Mini. Corp., §§ 55, 300, and many cases cited in notes.) There is no such expressed or implied repugnance between the charter and the general law. III. The appellant however, makes the following points in. support of the alleged repeal by implication : 1. That the word “ regulate ” was first used in this connection in the Bevised Charter of 1870, and in no previous charter of this city, whence it is argued, that the Legislature then determined upon, and thus expressed, a new and different policy with reference to this city’s power over this subject. 2. That the ordinance in question, passed in July, 1871, amounted to a “ contemporaneous construction” by the city of this new word “ regulate,” which, in considering the disputed right of the city to pass such ordinance, this court will take into account. 3. That the meaning of the word “ regulate,” as settled by courts and lexicographers, is sufficiently broad to sustain the alleged repeal by implication. 4. That the words, “not inconsistent with any law of tins State,” at the beginning of section 1, of Art. III. of the charter, express merely the general intention of the Legislature ; whereas, the words “ to regulate or suppress ” express a particular intention, which must prevail over the power; that therefore, the power to “ regulate” (as defined by appellant) must be taken as an intended exception to the general prohibition to pass ordinances “inconsistent with any law of the State.” 5. That when a charter provision is directly in conflict with, or clearly expresses an intention to repeal, a prior general law, it does repeal such law! To which it is replied for respondent: 1. -As to the 5th or last preceding proposition, it is correct as a legal proposition, but totally irrelevant here, because no such conflict or intention to repeal appears. That legal proposition applies only, where, either in terms or by unavoidable implication, it appears on the face of the two statutes, that both cannot stand. (See authorities cited supra) ' 2. As to the 1st point, viz : the alleged change of' policy on the part of the Legislature, deduced from comparison of the successive city charters, no such inference is possible. On examining those charters it appears, that out of 51 years in question, the corporation was, during 21 years, “to restrain or suppress,” with the added (not the alternative) power, during the last four of these years, to “ tax,” but this during those 4 years only, in all; during the next 17 years, i-t could only “ suppress ;” and during the last 3 years, it could “ regulate or suppress.” 3. The word “ regulate ” means “ to make rules for.” But what kind of rules are authorized or intended by its use must be ascertained from the subject matter, the scope and objects of the statute, and the settled rules of construction of municipal charters. This word has not, in this connection, any such meaning as alleged by appellant. (Dill. Mun. Corp., § 292; Gibbons vs. Ogden, 9 Wheat., 196; Cincinnati vs. Bryson, 15 Ohio, 625 ; 2 Sto. Const., (Ed. 1858,) 3, § 1061; Id. (Cooley’s Ed. 1873), 4, § 1061.) The ordinance is, but the charter is not, repugnant to the State law. 4. As to what kind of rules the city may make under such a grant of power, it is insisted “"Where the power to legislate upon a given subject is conferred upon a municipal corporation, but the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” (Dill. Mun. Corp. § 262, and cases cited.) And since the charter provisions referred to (viz: 10th clause of § 1, of Art. 3, of Rev. Charter of March 4, 1870, Adj. Sess. Acts of 1870, p. 464,) are simply a grant of power to “ regulate or suppress” such houses, with no specific provision as to the mode of exercising such power, it follows: that any ordinance based on this provision will be invalid unless it “is reasonable and lawful, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State.” (Dill. Mun. Oorp., § 253 and cases cited ; St. Louis vs. "Weber, 44 Mo., 550; Paris vs. Graham, 33 Mo., 96 ; St. Louis vs. Cafferata, 24 Id., 97 ; St. Louis vs. Allen, 13 Id., 414; St. Louis vs. Bentz, 11 Id.. 62; Baldwin vs. Green, 10 Id., 410 ;.Harrison vs. State, 9 Id., 531; (the two cases last cited are directly in point on the case at bar,) Jefferson City vs. Courtmire, 9 Id., 693; St, Louis vs. Smith, 2 Id., 114; State vs. Plunkett, 3 Harrison,. (N. J.,) 6 ; Austin vs. Murray, 16 Pick., 125; Merriam vs. Moody, 25 Iowa, 170; Minturn vs. Larue, 23 How., (U. S,) 436. There is no conflict with this in the case of State vs-Binder, 38 Mo., 456.) 5. The construction put upon the word “ regulate ” by defendant, viz : that this word implied a grant of charter power superior to, and necessarily conflicting with, the general criminal law on the same subject, and that therefore, this ordinance operates to repeal that State law within the city limits, is unreasonable as leading to absurd conclusions. For if this be so, then the word “ regulate ” confers exclusive jurisdiction on the city as against the State courts. And not on this subject only, but on all subjects where alike power “to regulate” is given. Whence it follows, that the charter of 1870 operated within the city limits to repeal all prior State laws against gambling and betting, against riots and breaches of the peace, against vagrants, against nuisances, dangerous trades or factories, and all other things affecting the public health, and many other matters which the city has power to “ regulate.” This is a reductio ad absurdum, and is contrary to express rulings of this, and other courts. (Harrison vs. State of Mo., 9 Mo., 531; .Baldwin vs. Green, 10 id., 410 ; State vs. Plunkett, 3 Harrison, (N. J.,) 6; Minturn vs. Larue, 23 How., (U. S.,) 436 ; St. Louis vs. Cafierata, 24 Mo., 97.) 6. In reply to the remaining point made for defendant, viz: that the special grant of power “to regulate,” &c., is to be considered an exception to the “general intention” shown by the words “not inconsistent with any law of the State,” it is insisted: that this suggestion is based upon a complete misapplication of the principle referred to. The rule laid down by this court in The State vs. Macon County, 41 Mo., 459, is, that “a later statute, which is general and affirmative, does not abrogate a former which is particular, unless negative words are used, or unless the two words are irreconcilably inconsistent.” Here no question arises between a prior and later act, but it is sought to nullify a general clause at the beginning of the 1st section of Art. 3 of the charter, intended to limit and circumscribe every following grant of power in that section, by a subsequent special clause setting forth one of these grants. The Legislature begins the enumeration of the grants of legislative power, by declaring as a condition precedent to the exercise of any of such by the city, that it shall not contravene the general law of the State; and it is asserted here, that this condition precedent is immediately afterwards set aside by the simple mention of a power which can exist only under that condition. In fact, the case above referred to, and cited on this point by defendant, is directly against the position taken for her here. Here the argument from this record might well close, for if the foregoing propositions are correct, the judgment below must be affirmed. If, however, the court shall see proper to consider the validity of the ordinance itself as a whole, not only as to the use which this defendant has attempted to make of it, but as to the power of the city council to enact it, the following further considerations are submitted: I. According to the undisputed rules of construction of municipal charters, and in view of the uniform course of criminal legislation in this State, the 10th clause of section 1, of Article III of the Revised Charter of 1872, cannot be interpreted to sustain this ordinance, nor can the Legislature have intended by that clause to empower the Mayor and City Council to enact said ordinance, taken as a whole; and further: II. Even had the Legislature intended by that clause to grant to the city authorities the extraordinary powers deduced from that one word “ regulate,” and embodied in this ordinance, such grant would be void, as in derogation of the rights of the citizen, and beyond the constitutional powers of the Legislature itself. This ordinance cannot be held valid under the clause referred to: (a.) If thereby the city assumes to exercise powers not in said clause expressly granted or resulting therefrom by reasonable and necessary implication. (Dill. Munc. Corp., § 251; Id., § 55, and cases cited; Hitchcock vs. St. Louis, 49 Mo., 484.) (b.) Or if the city assumes thereby to exercise powers which are oppressive, unfair or discriminating in their operation, (St. Louis vs. Weber, 44 Mo., 547; Corns., &c. vs. Gas Co., 12 Pa. St., 318 ; Dill. Munc. Corn., §§ 254, 256 ; Mayor ■ vs. Winfield, 8 Hump. (Tenn.), 707; Chicago vs. Rnmpff) 45 Ill., 90 ; Whyte vs. Mayor, &c., 2 Swan (Tenn.), 364; Mayor, &e. vs. Thorne, 7 Paige Oh., 261.) (c.) Or powers which are in contravention of the general laws and legislative policy of the State, which are not repealed in terms or by necessary implication by the charter. (Dill. Munc. Corp., § 253 ; lb., § 55, and cases cited.) (id.) Or powers whose exercise conflicts with the fundamental rights of the citizen, especially those ¿elating to personal liberty or the rights of personal security. (Dill. Munc. Corp., § 253 ; 3-, § 55, and cases cited.) 2. is plain, on inspection of this ordinance, that it is “an entire by-law,” framed and enacted for a simple general purpose, each part or section having relation to all the rest and having a general influence over the others. If, therefore, any of its essential provisions are void, the entire ordinance is void. (Dill, Munc. Corp., §' 354, and cases cited; Warren vs. Mayor, 2 Gray, 84; Comm. vs. ITitchings, 5 Gray, 482.) 3. In considering whether this ordinance is valid, the court will be governed by the terms and provisions of the ordinance itself, and by those alone. And unless the powers conferred, and the directions given, are, on the face of the ordinance, clear, well-defined and conformable to the law of the land, it will be the duty of the court, especially where the gravest questions of personal rights and liberty are involved, to declare it void. (Fisher vs. McGier, 1 Gray, 1.) 4. It is insisted for the respondent, that the ordinance is liable to each and every of the fatal objections above suggested : 1. It contravenes' the general criminal legislation of the State in pari materia. The assertion of this proposition is the actual key note of this defendant’s appeal here. (Dill. Munc. Corp., 253.) 2. It also contravenes the settled doctrine of the common law and the established policy of the State on this head of criminal legislation. For the effect and scope of this ordinance, as a whole, is nothing else but to protect the trade of harlotry within the limits of the city, provided only, that those who practice and maintain that trade will comply with certain regulations, aimed exclusively at certain loathsome physical consequences of their crime, but utterly ignore that which is “the gist of the offense,” to-wit: its injurious effect on public morals. (2 Bishop’s Grim. Law, § 65 ; 1 lb., (Ed. of 1872, 5th Ed.) § 1083; Dill. Munc. Corp., §§ 55, 253 263, 300.) 3. It is oppressive, discriminating and uuj ust; and this in more than one way ; for, it assumes to inflict upon property owners, in whose neighborhood permission to keep a brothel is given by the police commissioners, that which is a nuisance at common law, and maintaining which is penal by statute, this under color of -the official sanction of the corporate authorities. It also assumes, as below more fully stated, to aim irresponsible officers with extraordinary and oppressive powers against persons who are assumed to belong to a certain class or to pursue a certain criminal occupation. (4 Blacks. Oomm., 167 ; 1 Bisli. Crim. Law (Ed. 1872), § 1083 ; White vs. Mayor, &c., 2 Swan, 364.) 4. By this ordinance the city assumes to impose a tax of large annual amount upon persons engaged, or alleged to be engaged, in a certain criminal occupation, as such, although no power to either license or tax such occupation is conferred in said 10 th clause of section 1 of Article III of the charter in respect of said occupation; whereas, in said 10th clause, &c., express power to license and” tax is conferred in respect of certain specified trades and occupations; such tax moreover, being levied not for the purpose of suppressing this occupation, but avowedly to provide the means of treating certain physical ailments to arise from its expected and permitted continuance. (Dill. Munc. Corp., §§ 605-6, 291; Cooley’s Const. Liras., 201, 205 ; St. Louis vs. Boatmen’s I. & T. Co., 47 Mo., 150; Dill. Munc. Corp., § 291, 295, 299, and cases cited in notes; Mayor, &c. vs. Beasley, 1 Hump. (Tenn.), 240.) 5. The foregoing objections show, that by this ordinance the city has attempted to usurp powers, which the Legislature did not intend to, nor has, conferred by the charter provision “to regulate,” &o. But by said ordinance, the city also assumes to exercise powers which the Legislature itself has not constitutional power to'confer, namely: 1. It assumes to appoint special officers with power, and whose duty it is declared to be, at their discretion, to enter dwelling houses and private apartments upon their own private opinion as to the mode of life of the inmates, without warrant or other authority of law for such trespass, and without providing for any judicial ascertainment, or even any lawful charge or complaint as to the character or use of such houses, or for the conviction of any such inmate in respect of any unlawful act, which is in violation of the bill of rights. (Art. XXIII of Bill of Bights, 1 W. S., 37; See. 11 of Ordinance ; Fisher vs. McGier, 1 Gray, 1; Ex parte Milligan, 4 Wall., 2.) 2. It further requires such officers, without reference to or providing for the consent of any such inmates, to make examination of her physical condition in respect of certain suspected diseases, the ££ explorations ” required by said ordinance, being necessarily such as, if attempted without such' consent, would constitute a criminal assault of the most odious and aggravated character. (Sec. 11 of Ordinance; 4 Blacks. Com., 177, 213; 1 Bish. Crim. Law (Ed. 1872), §§ 546, 548; Art. XXIII Bill of Bights, 1 W. S., 37.) 3. Said ordinance further authorizes such officer, on his own judgment, that if any such inmate is affected by a certain disease, “ to order her removal or cause her arrest and commitment to the hospital,” to remain there without bail or lawful opportunity of release, till declared cured ; and the refusal to obey such order is declared a misdemeanor. This, on the plea of authority in the city officers to guard against contagious diseases, although the disease in question is not within the definition of a nuisance, nor within the lawful powers or remedies applicable to nuisances; nor is such disease contagious except by the voluntary criminal act of third persons; nor can the intent, either to communicate or receive such infection, be lawfully presumed from the mere existence of said disease in a given person. (1 Bish. Grim. Law (Ed. 1872), | 490 ; 4 Blacks. Com., 166 ; People vs. Albany, 11 Wend., 539; Sedg. Stat. and Con. Law, 465; 1 Bussell Grimes, 107-8 ; Fisher vs. McGier, 1 Gray, 1.) 4. Said oVdinance also undertakes to compel any person keeping a brothel, and thereby subject to a criminal prosecution tinder tlie State law, to furnish to the health and police commissioners, on their demand for same, full information as to such house and the unlawful use thereof; or, in other words, to,give evidence against herself in a criminal matter, on penalty of a misdemeanor for refusing, which is a violation of the Bill of Rights. (Sec. 18 of Ordinance; Art. XVIII of Bill of Rights, 1 W. S., 36.)