City of St. Louis v. Kellman

139 S.W. 443, 235 Mo. 687, 1911 Mo. LEXIS 128

• Court: Supreme Court of Missouri
• Decided: July 1, 1911
• Status: Published

Opinion

LAMM, J.

— This case is a companion with a series, idz., City of St. Louis v. Ameln, City of St. Louis v. Ferd Meyer, and other cases (just handed down and reported in this Report and in 236 Mo.), in which the appeals are intended to test the validity of one or another phase of the milk ordinances of St. Louis. Kellman was convicted for violating ordinance 24582, fined $25, and appealed here.

The substance of the complaint against him is that he, on the 17th day of November, 1909, in violation of ordinance 24582 (pleaded by its title, number and date of approval, viz., October 23, 1909), did have in his possession and carry at a named place in said city,' with intent to sell and expose for sale, skim milk showing on analysis less than 8.5 per cent milk solids, not fat, to-wit, 7.74 per cent. Ordinance 24582 follows:

“An Ordinance to amend Section Five Hundred and Five, Article Five, Chapter Eleven, of the Revised Code of St. Louis, Nineteen Hundred and Seven, by striking out said section and inserting in lieu thereof a new Section to be known by the same number, in relation to the sale and custody of skimmed milk and providing penalties for the violation thereof.

“Be it ordained by the Municipal Assembly of the city of St. Louis as follows:

“Section One. Section Five Hundred and Five, Article Five, Chapter Eleven, of the Revised Code of St. Louis. Nineteen Hundred and Seven, is hereby amended by striking out said section and inserting in lieu thereof the following new section bearing the- same number.

“Section Five Hundred and Five. Notwithstanding the provisions of Section Five Hundred and One of the Revised Code of St. Louis, Nineteen Hundred and Seven, milk from which a part or all of the cream has been removed and which is known as skimmed milk, may be lawfully sold as herein provided and not otherwise. a. No skimmed milk shall.be sold, kept, offered or exposed for sale, stored, exchanged, transported conveyed, .carried or delivered or with such intent as aforesaid be in the care, custody, control or possession of anyone, unless it show on analysis not less than(One) nine and one-quarter per cent of milk solids. (Two) Eight and one-half per cent of milk solids, not fat.” . . . (Here follow clauses b, c, and d, immaterial here.) . . . “e. Any person, persons, firm or corporation violating any of the provisions of this section, or who fails to comply with any of the regulations as provided for in this section, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense.”

Section 505 of the Revised Code of St. Louis, 1907, reads:.

“Sec. 505. The following regulations shall govern the sale of milk known as skimmed milk:

“First. All milk which contains not less than ten and five-tenths per cent of total solids and one and five-tenths per cent butter fat, which is of a specific gravity between one thousand and thirty-two and one thousand thirty-eight, which is free from foreign additions of any kind and any evidence of decomposition, which is stored, transported and delivered to purchasers at the temperature provided in this article for sweet milk, shall be known as skimmed milk, and may be lawfully sold as such under the following regulations.”

The city through its inspector took a sample of skim milk from defendant’s wagon, on the date and at the time and place mentioned in the complaint, had the same analyzed by the city chemist, who testified it showed on analysis only 7.74 per cent of milk solids,non-fat. It then read in evidence ordinance 24582, supra. Defendant objected to the introduction’ of the ordinance because in conflict with a prior general ordinance, and it failed to repeal the same “by express terms,” as provided by the charter (art. 3, sec. 28). Defendant read in evidence section 505, supra. The objection was overruled, defendant excepted, and put in no other evidence.

The charter provision invoked (art. 3, sec. 28, supra) reads:

“Sec. 28. Numbering, Printing and Repeal of Ordinances. — . . . and no special or general ordinance, which is in conflict or inconsistent with general ordinances of prior date, shall be valid or effectual until such prior ordinance, or the conflicting parts thereof, are repealed by express terms.”

(Nota bene: The groundwork was laid below, by motions overruled and exceptions saved, to review a series of questions — some of them disposed of in the Ameln and Meyer cases and some of them presented in cases following.)

The question here is single, viz.: Is ordinance 24582 invalid for that it violated the charter in attempting a repeal of a former ordinance, section 505, supra, by implication?

There are certain familiar principles of law to keep in mind in disposing of the question in hand, viz.: Repeals are not favored by the law. As it is with statutes so is it with ordinances, they are clothed, in the first instance, with presumptive validity. The charter of a city bears to its ordinances the same relation that the constitution of a state does to its statutes; that is, the charter or constitution is the measuring rod by which the validity of the statute or ordinance is measured. There are two ways of repealing an ordinance or statute — one total, where the repeal is by express terms the other (complete) arises by necessary implication where total repugnancy exists between a later and an elder ordinance or law; or a repeal pro tanto, when such partial'repugnancy exists; or, again, total or partial, where the whole or part of the subject-matter of the former is covered by the later and revising regulation.

Keeping in mind the foregoing trite principles, it is well to round out defendant’s contention a little. It may be stated this way: Section 28, supra, of the charter of St. Louis forbids the repeal of. one ordinance by another by implication; the provision of the later ordinance, 24582 (in question here), is repugnant to the provision of the prior ordinance, section 505, of the Revised Code of 1907, in the requisite per cent of solids, non-fat, in saleable skim milk. By that token, measured by the charter, the later ordinance falls within the charter interdiction, is invalid because the conflicting parts of the prior one were not “repealed by express terms.” Wherefore, the ordinance falling, the prosecution must fall with it, the judgment be reversed and defendant discharged.

Contra, the contentions of the city are two. First. That the prior ordinance was repealed by express terms. Second. That if that be not so, yet the fact remains that the charter provision does not apply to ordinances amendatory in character, and that 24582 was an ordinance of that kind.

Whether it be necessary to consider the last branch of counsel’s argument will depend on the disposition made of the issue joined on the repeal of section 505.

The repugnancy between the two ordinances is not an open question. It is argued on all sides that they are at cross purposes and in conflict, if both be allowed life at one and the same time. Therefore, we shall assume repugnancy as a premise for what we have to say.

It is clear that safe exposition of the matter hinges on the analysis, meaning and office of the charter term, “repealed by express terms.”

Attending to that term, what does the word “repeal” mean when used by lawmaker or judge? “ Repeal” is defined as the abrogation or annulling of a previously existing law by the enactment of a subsequent statute, which either declares that the former law shall be revoked and abrogated or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two can stand in force — the latter is the “implied” repeal, heretofore mentioned; the former, the “express” repeal. [Black, L. Diet. Tit. “Repeal.”] Bouvier defines it to be: “The abrogation or destruction of a law by a legislative act.” [Bouv. L. Diet. Tit. “Repeal.”] Note the word destruction. Webster defines it: To recall; to rescind or abrogate by authority; to revoke. He gives among its synonyms annul, cancel, reverse, abolish. He defines the noun “repeal” as meaning: Revocation, rescission, abrogation. Abrogate, in turn, means to annul by an authoritative act, to abolish by the authority of the maker, to repeal. Other instructive shades of meaning come out in accredited definitions of the several synonyms, but the foregoing are enough for our purpose. The repeal of an ordinance, then, is accomplished when it is destroyed, abolished, abrogated, cancelled, annulled recalled or rescinded by a later one.

In construing the charter provision in hand, courts have no call to apply to it any “rigid or technical rule, but should be governed by considerations of reason and justice.” [Ruschenberg v. Railroad, 161 Mo. l. c. 84.] We think the charter not so narrow and rigid as to demand the repealing ordinance use the very word “repeal.” Any synonym or equivalent expression, filling the same office, would subserve the object of the charter provision. Any other view stickles and quibbles on mere words. Qui haeret in litera, haeret in cortice.

Going a step further, the charter requires the repeal to be by “express terms.” The word “terms” speaks for itself. It is a primary concept in the connection used. Broadly, however, it may be said to signify: words, provisions.' But there is significant and controlling matter in the word “express.” “Express” is used in contrast with (i. e. as a counterterm, an antonym for) “implied.” “Express” means: Stated directly and distinctly, not left to inference — exact, precise — its synonyms being: Clear, unambiguous, outspoken. [Web.] The law dictionaries do not differ from that, viz.: “Made known distinctly and explicitly and not left to inference or implication. Declared in terms; set forth in words. . . .” [Black, L. Diet. Tit. “Express.”]

Conversely, “implied,” in its ordinary acceptation, signifies inferential, tacitly conceded, involved in substance. It is the correlative of “express.” An implied repeal would be one not declared by spoken words, but left to be reasoned out by inference. That happens, as said, when, without express repeal, the provisions of two ordinances or laws so conflict that they cannot stand together and be in force at the same time, or occupy the same territory and are directed to the same end.

Obviously, the plan of repealing an earlier ordi- . nance by implication, because in conflict with a later ordinance, is abolished by the charter. The effectual charter plan to reach that end is by the stroke of making the later ordinance invalid. Under any system the lawmaker sh&uld have in mind the present condition of the law in order to legislate intelligently. Under the charter system here he must have in mind the present condition of the law in order to legislate at all.

Sometimes courts will aid the lawmaker by making a later special ordinance not a repeal by implication, but an exception to the prior general ordinance (Ex. gr., Ruschenberg v. Railroad, supra; Campbell v. Railroad, 175 Mo. l. c. 176), and others avoid conflict and- give both ordinances a field of operation. Sometimes courts are able to construe the two ordinances so that the one is cumulative, or that there is no conflict or inconsistency, in which event the charter provision does not apply. As where the two are not “materially variant.” [St. Louis v. Weitzel, 130 Mo. l. c. 617.] But no help of that sort can obtain here. There is clear conflict and unless the first is repealed in express terms the last is invalid.

Considering not only the definitions of “repeal,” “express,” and “implied,” but looking to the heart of the thing, is not section 505 of the Municipal Code to all intents and purposes repealed by ordinance 24582? Observe, it is identified by being referred to by its section number in 24582; therefore, must be taken as in the legislative mind. The new ordinance destroyed the old as a law — not by inference or impliedly. To the contrary, it expressly struck it out, the whole of it, by clear and unambiguous words. A repeal could do no more. The thing done, not the mere words said, is the substance. One must “not be so lost in lexicography as to forget that words are the daughters of earth and that things are the sons of heaven.” (Vide. Johnson, Samuel, in the preface to his dictionary.)

“Strike out” is not a charter term, and yet it has come in use in legislative proceedings to indicate that a certain clause or section of a law, or proposed law, is expunged, abolished or destroyed by the authority of the lawmaker. The term “strike out,” in some of its legislative uses means: to force out, to blot out, to efface, to erase. It may well be allowed, then, the same meaning as destroy, cancel'or abolish. So construed, it overlaps or connects itself with the definition of “repeal.” In the sense and connection used in ordinance 24582 it could have no other meaning. It should be given some meaning, if possible, and it is reasonable to assign to it that here given it.

It would have been in better form to have used the words of the charter. But ordinances are not to be criticised with overniee refinement, nor are municipal lawmakers required to use the most exact and precise terms in expressing their intendment. Such ruling would lead up to distress by unsettling much law.

The fact that the idea of amending by striking out and inserting is also present in ordinance 24682 does not tend to show a repeal by implication, whatever office may be assigned to it. Primarily, amend means to mend, improve. It involves the conception of something left to amend, as a stock or stem on which to graft an improvement. In this view of it to strike out a thing and thus obliterate it, does not accord' with the idea- ¡of improving the thing itself by amendment. But in a legislative sense “a proposition may be amended by an alteration which entirely defeats the purpose of the (original) mover, or it may be turned into a motion of a different kind.” [Per Locke, J., in Brake v. Callison, 122 Fed. l. c. 724.] In that sense to strike out does not grate on the sense when the lawmaker has in mind an amendment by striking out the entire law. Indeed it would be daring to hold that to strike out some laws would not improve them.

The premises considered, we rule that section 505 of the municipal code is repealed by express terms. That ruling renders unnecessary further consideration. The judgment is affirmed.

All concur, except Valliant, C. J., who dissents.