text:
    CITY OF ST. LOUIS v. REUTER, Appellant.
    In Banc,
    October 20, 1905.
    CREAM: Percentage of Fat: Police Regulation. Following the reasoning and conclusions reached in St. Louis v. Liessing, ante, page 464, it is held in this case that ’an ordinance of the city of St. Louis which imposes a fine upon any vendor of cream which contains less than twelve per cent butter fat, is a reasonable police regulation, and does not violate any provisions of the State or Federal Constitution.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Affirmed.

      E. F. Stone for appellant.

      Chas. W. Bates and Wm. F. Woerner for respondent.
   GANTT, J.

This is another appeal involving the constitutionality and validity of the milk ordinance of the city of St. Louis, numbered 20808. Section 19 of said ordinance is assailed in this particular case. That section provides that “no cream shall be sold, offered for sale, exchanged, delivered or be transported for the purpose of sale, offering for sale, exchange or delivery, that contains less than, twelve per centum of butter fat or that is taken from any impure, diseased, unhealthy, unclean, adulterated or unwholesome milk, or milk to which any foreign or other substance of any kind has been added.” The evidence developed that a deputy milk inspector of the city took a sample of cream from defendant’s milk wagon on the 13th of July, 1904, at Tenth and Lafayette avenue, sealed it, and delivered it to the city chemist, and that the city chemist analyzed the same gravimetrically and found it to contain ten per cent of butter fat only. No evidence contradicting the city’s case was offered by defendant.

The only difference between this case and that of St. Louis v. Liessing already considered and affirmed and reported at page 464, is that in this case the 19th section of ordinance No. 20808, which provides that no cream shall be sold, carried or exposed for sale which contains less than twelve per cent of butter fat, while in that case, section 18 of the same ordinance was challenged which provides that no milk should be sold, etc., unless it shows on analysis not less than three per cent by weight of butter fat, eighty-five per cent solids not fat, and seventh-tenths of one per cent ash. The two cases involve the same principles of law, to-wit, the dignity of the ordinance as a law; its validity as the exercise of the police power under the authority conferred by the charter; its constitutionality with reference to the State and Federal Constitution; the right to establish a stmdard of purity of milk and cream; its binding-effect upon the courts; the validity of the ordinance as affected by the contention that it is inconsistent with a prior unrepealed ordinance; the validity of parts of an ordinance if other parts are invalid, if severable; the validity of ordinance No. 20808 as against the charge of defective title and the claim that it is based upon a prior void ordinance, all of which were ruled adversely to defendant’s contention in Liessing’s case. Adhering to the views expressed in that cage, the judgment must be and is affirmed.

Brace, C. J., Marshall, Burgess, Valliani, Fox and Lamm, JJ., concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    CITY OF ST. LOUIS v. POLINSKY, Appellant.
    In Banc,
    October 20, 1905.
    MILK: Coloring Matter: Annatto: Deception: Injury to Health: Validity of Ordinance. The adding of a coloring matter, such as annatto, to milk from poorly fed cows, or to milk from healthy cows at certain seasons of the j ear, in order to give it the rich and golden color belonging to the milk of cows fed on green food, whether such adulterant increases or lessens the wholcsomeness of the milk, is a deception and a fraud upon the milk-consuming public; and an ordinance which prohibits the sale of such milk is a reasonable police regulation.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Affirmed.

      E. F. Stone for appellant.
    Ordinace 20808 is unconstitutional and void in that it violates sec. 4, art. 2, and sec. 30 of art. 2 of the Constitution of this State, and deprives defendant of his natural right to life, liberty and the enjoyment of the gains of his own industry, and of his property and liberty without due process of law. And it is void also as being in violation of sec. 1 of the fourteenth amendment to the Constitution of the United States, which provides that no one shall be deprived of life, liberty or property without due process of law, nor denied the equal protection of the laws. The ordinance operates to absolutely suppress and prohibit the sale of milk conceded to be wholesome and healthy, and an article of food in general use, and declares its sale or offering for sale a crime. Fixing such a standard as the one in the ordinance provided amounts to an arbitrary declaration that milk that is “wholesome and innocuous” is unhealthy. The ordinance makes-the “exchange, or having in possession, with intent to sell, exchange or deliver skimmed milk in any other manner than set forth in the ordinance,” though healthy and wholesome, a crime, with virtually no opportunity to defend. This is shocking. Judge Dillon fully and forcibly expresses just this situation when he refers to the decision in the Powell case, 127 U. S. 678, as follows: “We cannot but ex-, press our regret that the Constitution of any of the States or of the United States admits of a construction that it is competent for a State Legislature to suppress (instead of regulating) under fine and imprisonment, the business of manufacturing and selling a harmless and even wholesome article, if the Legislature chooses to affirm, contrary to the fact, that the public health or public policy requires such suppression. The record of the conviction of Powell for selling, without any deception, a healthful and nutritious article of food makes one’s blood tingle.” Such an ordinance violates said constitutional provisions and is a nullity.

      Chas. W. Bates and Wm. F. Woerner for respondent.
    (1) The addition of annatto, or similar substances which are harmless to health when added to milk, cream, butter or oleomargarine, is an adulteration, under laws similar to the one here in question. Waterbury v. Newton, 50' N. J. L. 534; Plumley v. Massachusetts, 155 IT. S. 476; Com. v. Weatherbee, 153 Mass. 159; State v. Bockstruck, 136 Mo. 335; People v. Arensberg, 105 N. Y. 132; People v. Girard, 145 N. Y. 105. (2) It is a matter of common knowledge that the quality of milk depends largely, or is at least supposed by the public to depend largely, on the nature of the food that the cows are fed upon; that cows fed on grass, clover or other fresh green food give a quality of milk superior in richness and appearance to cows fed on refuse, slops or winter foods; by the addition of annatto coloring matter to the chalky white cream from winter-fed or poorly fed cows, thedeception is practiced upon the public of making thelatter poorer quality of milk, or at least less desirable quality, to assume the rich and golden appearance of the former which the public prefer, and thus palm off something which is, or is at least supposed by the buyer to be, of an inferior quality, and therefore less salable, in place of what the buyer thinks he is getting. Such a fraud and deception upon the public, and unfair advantage over an honest competitor, may clearly be prohibited by the sale of such fraudulent article. It is not the honest sale of the article, but its dishonest sale as something which in reality it is not, that is prohibited. It is to prevent the opportunity of deception, one which ‘ ‘ renders it easy to deceive purchasers into buying that which they would not buy but for the deception.” State v. Addington, 77 Mo. 110, approved in 155 IT. S. 1. c. 477; State v. Layton, 160 Mo. 492; People v. Arensberg, 105 N. Y. 133; Weigand v. Dist. of Columbia, 22 D. C. App. Cas. 559; Plumley v. Massachusetts, 155 IT. S. 475; Dairy Co. v. Ohio, 183 IT. S. 246; Powell v. Pennsylvania, 127 IT. S. 678; State v. Schlenker, 112 Iowa 642; State v. Campbell, 64 N. H. 405.
   GANTT, J.

This appeal involves the validity and constitutionality of section 17 of ordinance No. 20808. In the case of St. Louis v.Liessing, reported at page 464 of this volume, nearly all the objections raised on this appeal were considered and decided adversely to defendant’s contention. As to those, reference need only be made to that case, and we will address ourselves only to those features peculiar to the section assailed by this appeal.

The information in this case charges that on the 20th day of March, 1903, and on divers other days and times prior thereto, the defendant Polinsky, doing business under the name of the “Penmar Dairy Co.” did then and there in the city of St. Louis, carry, control and expose for sale at 3024 Locust street, in said city, cream, which said cream did contain an adulterant known as annatto, contrary to the ordinance in such case made and provided. The said section 17 is as follows :

“Section 17. Any person, firm or corporation who shall sell, expose for sale, exchange, deliver, dispose of or transport, convey or carry, or with any such intent as aforesaid have in his or her care, custody, control or possession, any milk or cream having therein, or containing any foreign substances of any kind whatever, or coloring matter, or any adulteration or preservatives, whether for the purpose of artificially increasing the quality of the milk or cream or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than twenty-five dollars for each and every offense.”

Patrick Comer testified that as deputy milk inspector, he did on March 20th, 1903, take a sample of cream from the wagon of the defendant, and put it in an eight-inch bottle, sealed it and turned it over to the city chemist.

Walter Bernays, city chemist, testified that he made an analysis of said sample of cream and it was found to contain' coloring matter, annatto, an artificial coloring matter, and that it was an adulterant. That there was no method of determining the amount of annatto present. It is put in to color the cream; to enrich the color and make it appear to the consumer that it contains more fat than it really does. ■ He stated that annatto was' not injurious to health so far as he knew.

William Grafeman, for the defense, testified in substance that he had been in the milk business in St. Louis since 1883 and was president of the Grafeman Dairy Company. That milk in certain seasons of the year is white because cattle do not get green food, as green corn, grass, etc. Annatto is used to meet public demands. The public do not like white cream. Annatto gives it a richer color and the public demand it as they do in butter. In other words, the public requires to be fooled. They buy milk on its looks. It is their belief that when it is yellow, it is richer and better and for this reason the coloring matter is put in. At the conclusion- of the evidence a demurrer to the evidence was offered and overruled, and then two instructions, one that the ordinance was unconstitutional, and the other that it was invalid because unreasonable as a matter of law and on the evidence, were prayed by. the defendant and overruled.

I. All that was said on the principal objection to this ordinance as a whole, in St. Louis v. Liessing, is applicable to the facts of this case andneed notbe repeated. It remains only to determine that provision of section 17 of the ordinance which prohibits the sale or offering for sale of any milk or cream having therein any foreign substance or coloring matter.

It is too plain for doubt that annatto is put in cream and milk for the purpose of deceiving purchasers and consumers thereof, and making them believe they are buying a better article than they are in fact obtaining. The defense to this case is that it is a harmless deception and that the color of milk or cream indicates only the food npon which a cow is fed, as if the food npon which a cow is fed makes no difference in the quality of milk or cream she will give. The question then is whether it is competent for the Legislature or Municipal Assembly to prohibit the use of artificial colorings, such as annatto, calculated to deceive, and whether under the ordinance challenged annatto is an adulterant within the meaning of the ordinance.

On this point there seems to be much unanimity in the deliverances of the courts of last resort. In State v. Addington, 77 Mo. 110, the contention of the defendant was that the act of March 24, 1881, which prevented the manufacture and sale of oleaginous substances or compounds of the same, in imitation of pure dairy products, was unconstitutional, and he offered to prove that oleomargarine was wholesome as an article of food, and if he could establish that fact the constitutionality of the act would be overthrown, but this court rejected the argument as subversive of the exercise of the police power, this court saying that if the contention of the defendant could be sustained, then any man arrested for killing game at an unlawful season might appropriately offer to prove that the birds killed were injurious to the public or destructive to crops, or the master of a vessel required to submit to sanitary regulations might prove that there was no disease on his vessel and therefore a law compelling him to remain at quarantine was an infringement of his constitutional rights. The act in the oleomargarine case was sustained on the ground that it was the manifest purpose of the act to prevent facilities for selling or manufacturing spurious articles of butter, resembling the genuine article so closely in its external appearance as to render it easy to deceive purchasers into buying that which they would not buy but for the deception. The decision of this court in that case was sustained by the Supreme Court of the United States in Plumley v. Massachusetts, 155 U. S. 477.

In State v. Bockstruck, 136 Mo. 356, an act prohibiting the coloring yellow of any substance designed to be used as a substitute for butter and cream was sustained on the ground that its evident object and dominating idea was to prevent the manufacture or sale of a spurious article of butter.

In Powell v. Com., 114 Pa. St. 265, a statute much resembling that in Addington’s case was held valid, though the article was marked and sold as “oleomargarine butter” and was shown to be a wholesome and nutritious article of food, and that judgment was affirmed by the Supreme Court of the United States in Powell v. Pennsylvania, 127 U. S. 678. In Massachusetts a statute was held constitutional which prohibited the sale of milk though adulterated with an admixture of pure water only. [Com. v. Waite, 11 Allen 264.]

In People v. Arensberg, 105 N. Y. 123, an act to prevent deception in the sale of dairy products, was held not violative of the Constitution, the language of the act being, “in imitation or semblance or designed to take the place of natural butter,” the ground of the opinion being that it was designed to prevent deception.

These cases were followed in State v. Layton, 160 Mo. 474.

In Waterbury v. Newton, 50 N. J. L. 534, an act prohibiting the addition of annatto to oleomargarine was upheld, though it appeared that oleomargarine colored with annatto was a wholesome article of food. Among other things, the court said that the object of the act was to exclude from the market a commodity prepared with a view to deceive those purchasing it, and that the power of the Legislature to repress counterfeits could not admit of question. This ruling was sustained in Plumley v. Massachusetts, 155 U. S. 461.

In Com. v. Schaffner, 146 Mass. 512, a statute forbidding the sale of milk to which any foreign substance has been added came before the court for construction. It appeared that annatto had been added to color milk and it was held a violation of the act, the court saying, “It was immaterial whether the addition of the annatto coloring matter was or was not injurious to health.” To like effect see also, Com. v. Wetherbee, 153 Mass. 159; Beha v. State (Neb.), 93 N. W. 155; People v. Girard, 145 N. Y. 105.

In this last ease, involving the right to sell vinegar containing any artificial coloring matter, the court said: “There is talk here of interferences with the vested rights of an individual. Sometimes it is pertinent and weighty, but in this ease it is neither. It becomes the assertion of a vested right to color a food product so as to conceal or disguise its true and natural appearance; in plain words, a vested right to deceive the public.”

It is within the common knowledge that the quality of milk depends largely upon the nature of the food that cows are fed upon; that cows fed upon grass, clover or other fresh green food, give a quality of milk superior in richness and appearance to that drawn from cows fed on refuse, slops, or winter foods. By adding annatto to the white milk or cream given by winter fed or poorly fed cows, a deception is practiced upon the milk-consuming public by making this milk of inferior quality assume the rich and golden appearance of superior milk. Such conduct is a fraud and deception upon the public and an unfair advantage over honest competitors who refuse to resort to such deception against which the ordinance is levelled, and we hold it was clearly within the charter power of the city referred to in St. Louis v. Liessing. [Weigand v. Dist. of Columbia, 22 App. Cas. (L. C.) 559, 571; Plumley v. Massachusetts, 155 U. S. 461, 475, and cases cited; Capital City Lairy Co. v. Ohio, 183 U. S. 238; State v. Schlenker, 112 Iowa 642; State v. Campbell, 64 N. H. 402.]

The judgment of the St. Louis Criminal Court of Correction is affirmed.

Brace, C. J., Marshall, Burgess, Valliant, Fox and Lamm, JJ., concur.


author: GANTT, J. —

text:
    CITY OF ST. LOUIS v. SCHULEE, Appellant.
    In Banc,
    October 20, 1905.
    1. MILK: Preservatives: Formaldehyde: Constitutionality of Ordinance. It is competent for the Legislature, and for the city of St. Louis by ordinance, to prohibit the preservation of milk by placing a preservative therein, such as formaldehyde to keep it from souring. In doing so the city is exercising its police power in regard to a subject affecting the public health, to-wit, an article of food of general use and prime necessity.
    2. -: -: -: -: Ground on Which Power Rests. The ground upon which the prohibition against the use of preservatives in milk rests, is not to be found in the fact that a use of the preservative does not tend to deceive or mislead purchasers and consumers, but upon the right of the Legislature or ' municipal assembly to pass all needful and proper laws or ordi nances to secure the purity of an article of general use, and to 'prevent any tampering with it by absolutely prohibiting the use of artificial substances therein.
    3. -: -: -: -: -: Impure M.iik. Even where .any deleterious impurity of the germs of specific diseases is absent, adulterated or diluted milk is not wholesome or nutritious.
    4."-: -: -: -: -: Natural Decomposition. The purchaser of milk has the right to assume that the milk he buys will go through the natural process of oxidation and decomposition, and that nothing has been added to prevent it from souring according to the course of nature.
    5. -: -: -: -: -: Fraud and Deception. When the court is asked to declare that a city has no power to enact an ordinance preventing the use of a preservative in milk, it is not enough for the seller to show that he did not intend to defraud, or that the milk he sold was not unwholesome.
    6. -: -: -: -: —;-: Judicial Notice. It can not be said that the effect of formaldehyde in milk is so well known not to be deleterious to health, that the courts must take judicial knowledge of that fact.

      7. -7: -: -: -: -: Legislative Function: Right to Property. It is for the legislative department of government, in passing an ordinance for the protection of the public health', to determine whether the use of a preservative in milk, such as formaldehyde, is injurious. And in preventing the sale of milk containing such a preservative, it in nowise or manner destroyed the seller’s right to property.
    8. -: -: -: Privilege of Selling Pure Milk. Where the city prevents the sale of milk having any preservative in it, it in no sense prohibits the dealer in milk from selling pure milk, unmixed with any foreign matter.
    9. -: Constitutionality of Ordinance. For the reason given in St. Louis v. Liessing, page 464 of this volume, the ordinance under consideration in this case, which was a suit by the city to collect a penalty of $25 from defendant for placing a preservative in milk sold by him, in violation of said ordinance, is held to be constitutional.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Affirmed.

      E. F. Stone for appellant.
    (1) The production, sale and distribution of dairy products is a legitimate and lawful occupation or business, conducted as a matter of right and not as a privilege. Unusual and arbitrary restrictions cannot be lawfully imposed upon it by ordinance. Nor can harsh, expensive and burdensome provisions be enacted against persons engaged in an innocent and useful business so as to deprive them of the right to devote their property thereto and obstruct their freedom and liberty. Ex parte ‘Whitnell, 98 Cal. 78; Matter of Jacobs, 98 N. Y. 110; State ex rel. v. Ashbrook, 154 Mo. 395. An ordinance cannot, without reason, and arbitrarily, infringe upon the liberty or the property rights of any person or class of persons within the protection of the Constitution, under the plea that it is a police regulation for the protection of the public health. It must not go further than is necessary and appropriate, and must not require things to he done, burdens to be carried, property consumed or rights sacrificed when unnecessary for the protection of health. People v. Gills on, 109 N. Y. 389; Slaughter-House Cases, 16 Wall. 106; State v. Julow, 129 Mo. 163; State v. Fisher, 59 Mo. 174. (2) An ordinance may be adjudged unreasonable, oppressive, partial and vexatious by the courts, and declared null and void, and it must be reasonable, impartial and not oppressive, or it will be declared invalid and unconstitutional. Cooley, Const. Lim., 280; Beach on Pub. Corp., sec. 512; Freund on Police Power, sec. 142; Corrigan v. Gage, 68 Mo. 545; Fire Dept. v. Gilmore, 149 N. Y. 453; Ritchie v. People, 155 111. 98; Frost v. Chicago, 178 HI. 250; Tryman v. Chicago, 78 111. 405; City of Clinton v. Phillips, 58 111. 102; State v. Railroad, 68 Minn. 385; State v. Mayor, 37 N. J. L. 351; Nicoulin v. Lowry, 49 N. J. L. 394; Matter of Frazee, 63 Mich. 397; Kirkham v. Russell, 76 Ya. 962; Gates v. Milwaukee, 10 Wall. 497; Kheedler v. Borough, 100 Pa. St. 373; White v. Railroad, 44 Mo. App. 542; City v.' Starke, 93 Mo. App. 70. (3) No doubt the police power of the city may not only be used to protect the public health, but also to prevent a fraud upon the people, and necessary ordinances may be passed for those purposes; but the rights of property cannot be invaded, interfered with or destroyed under the pretense of a police regulation enacted for either of the purposes mentioned. The sale of a well-known article of food or a product conclusively known to be wholesome, could not be forbidden or prohibited by ordinance, even though it assumed to be in the interest of the public health. The enactment of a standard of purity of an article of food, failing to comply with which the sale of the article is illegal, to be valid must be within reasonable limits and not of such a character as to practically prohibit the manufacture or sale of that which, as a matter of common knowledge, is good and wholesome. People 'v. Bieseeker, 169 N. Y. 53; Prennd on Police Power, sec. 33; State v. Layton, 160 Mo. 496; Railroad v. City of Jacksonville, 67 111. 37; Town of. Lakeview v. Cemetery Co., 70 111. 191; Beebe v. State, 6 Ind. 501. The Legislature cannot arbitrarily declare any article of food in general use, and wholesome, to be unhealthy, and its production and sale a crime. State v. Layton, 160 Mo. 496; Dillon, Mun. Oorp. (4 Ed.), sec. 141, p. 211. (4) Said ordinance is unconstitutional and void, because it violates the 14th amendment to the Constitution of the United States, which provides, “Nor shall any State deprive any person of life,.liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” And also sec. 30, article 2, of the Constitution of Missouri, “That no per-' son shall be deprived of life, liberty or property without due process of law.” State v. Julow, 129 Mo. 172; 2 Story on Const. (5 Ed.), sec. 1950; People ex rel. v. Otis, 90 N. Y. 48; State v. Loomis, 115 Mo. 307; State v. Walsh, 136 Mo. 406; Cooley, Const. Lim. (6 Ed.), 484; Bank v. Oakley, 4 Wheat. 236; Wally’s Heirs v. Kennedy, 2 Yerg. 554. And “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In re Jacobs, 98 N. Y. 98 ; State v. Loomis, 115 Mo. 307. (5) Ordinances which tend to restrain competition and create monopolies or tend to confer exclusive privileges are generally condemned. ‘ ‘ They are void because they interfere with the liberty of the individual to pursue a lawful trade or employment.” Chicago v. Rumpf, 45 111. 90; City of Cairo v. Puechter, 159 111. 155; People v. Gas Trust Co., 130 111. 268; McQuillin, Mun. Ord., sec. 189; Yick Wo v. Hopkins, 118 U. S. 371; Butchers’ Union v. Crescent City Co., Ill U. S. 762; Marshall & Bruce Co. v. City, 71 S, W. 619.

      Chas. W. Bates and Wm. F. Woerner for respondent.
    (1) The principles of law in this case are identical in most respects with those in the cases of City of St. Lonis v. Lies sing, ante, 464, and City of St. Lonis v. Polinsky, ante, 516, which are briefed, argued and submitted herewith. (2) (a) We frankly concede, however, that a more forcible argument can be made against that part of section 17 here in issue, which inhibits the carrying for sale of milk “containing any foreign substances of any kind whatever ... or any adulteration or preservative,” etc., than in the other sections of the ordinance; and that the appellant’s contention of its invalidity receive support in the case of People v. Biesecker, 169 N. Y. 53. We submit, however, for the consideration of the court that there were reasons not referred to in that case, which ought to control, (b) Thus, on the other hand, a statute in Massachusetts prohibiting the. sale or carrying with intent to sell of milk to which “any foreign substance has been added” (which of course, includes preservatives) has in several decisions been treated, without discussion, as valid. Commonwealth v. Tobias, 141 Mass. 132; Commonwealth v. Gordon, 159 Mass. 8; Commonwealth v. Schaffner, 146 Mass. 514; Commonwealth v. Wetherbee, 153 Mass. 160. (c) A buyer has a right “to assume that the milk he buys . . . will go through the natural process of oxidation and decomposition. He may wish to use sour milk for culinary purposes, and has the right to assume that nothing has been added to prevent a chemical change. ... It may be concedéd that the milk sold by defendant was not harmful to the health of those who used it; but it is certainly dangerous to the public to permit milkmen to adulterate it in such manner as to change its constituent properties.” State v. Schlenker, 112 Iowa 647. (d) We think the legislating power has the right to decree that when snch a universal food article as milk is sold, it shall he pure milk, and not milk with something else in it and added thereto. We cannot he sure what reasons prevailed or what-motives may have actuated the assembly in prohibiting these preservatives and all foreign substances; but when all of the provisions in ordinance 20808, and in section 17 thereof, are read together, the good intent and motive of the enactment cannot be questioned. It may be that it was feared that formaldehyde or other unsuspected preservative might interfere in cases where calculation as to the time it takes milk to sour is essential, or in medicinal or chemical calculations. There may be other good reasons a layman does not know. At all events the buyer has a right to get what he buys. All the ordinance does is to secure this right. Danger in mixing in any foreign substance, whether supposed to be only a preservative or not, in snch a food as milk, is sufficiently possible to justify the upholding of a law prohibiting any tampering with it at all. Defendant’s property is not destroyed or affected in the least; he has the right to sell pure milk, but not milk with some other stuff in it.
   GANTT, J. —

The defendant in this case is charged with violating ordinance No. 20,808, section 17, in that in the city of St. Louis on the 28th day of July, 1903, he did then and there carry, control and expose for sale at Twenty-first and Chestnut streets, milk which did contain a preservative known as formaldehyde. On a trial on appeal, he was convicted in the St. Louis Court of Criminal Correction, and fined twenty-five dollars. Prom that judgment he appeals to this court on the ground that said ordinance and said section thereof are unconstitutional and void in that they deprive the'defendant of his natural rights to liberty and the enjoyment of the gains of his own industry, and of his property and liberty without due process of law, and because said ordinance is unconstitutional and void in that it is beyond the power of the Municipal Assembly to pass and enact the same.

Section 17 of said ordinance provides: “Any person, firm or corporation, who shall sell, expose for sale, exchange, deliver, dispose or transport, convey or carry, or with any such intent as aforesaid have in his or her care, custody, control or possession any milk or cream having therein or containing any foreign substance of any kind whatever, or coloring matter, or any adulteration, or preservative whether for the purpose of artificially increasing the quality of the milk or cream, or for preserving the condition or sweetness thereof, or for any purpose whatever, shall be deemed guilty of a misdemeanor,” etc.

The evidence on the trial disclosed that on July 28, 1903, one of the deputy milk inspectors of said city did take a sample of milk from a wagon of the defendant, put it in a bottle and sealed it, and handed it to the city chemist; that this sample was analyzed by the said'city chemist on the same day and found to contain a preservative known as formaldehyde; that formaldehyde is an “ organic compound oxidation product of alcohol, ’ ’ and was used by defendant to prevent the milk from becoming sour. J. C. Cabanne, an expert for the city, testified he was a milk dealer since 1868, and in business in St. Louis since 1872, and now supplied the city business to the extent of 5,000 gallons a day. He showed that milk could be kept sweet and good by simply keeping it cold, and that it was not at all necessary to use formaldehyde for that purpose, and that he ‘ ‘ always refused to take milk with preservatives in it.” Also that he had ‘ ‘kept milk stored for 21 days without preservatives in it, just at a temperature of 34. His milk is shipped into the city from a distance as far as a hundred miles.” The quantify of formaldehyde, in this particular instance, was not determined, as the ordinance did not require it, but the testimony was that there was only small quantities of it in the sample. There was evidence tending to show that the test used by the city chemist was not a conclusive one, but there was no pretense that either of the experts, Dr. Richter or Prof. Keyser, made any test of the sample in question. On the part of the defendant evidence was offered to show that' formaldehyde in sufficient quantities to preserve milk from souring was not injurious to the health.

At the conclusion of the evidence the defendant prayed the court to declare the law to be that under the testimony and the law the plaintiff could hot recover and that the ordinance was unconstitutional and unreasonable as a matter of law, and as shown by the evidence in the case. This instruction the court refused. After motions for a new trial and in arrest of judgment were filed, heard and overruled, the defendant appealed to this court.

I. This case involves some of-the objections to the constitutionality and validity- of the ordinance in question that, were made and decided adversely to the defendant in St. Louis v. Liessing, found on page 464 of this volume, and hence we must decline to again consider those objections.

II. The real question in this case is whether it is competent for the Legislature or the Municipal Assembly o-f the city of St. Louis to prohibit the preservation of milk by placing a preservative therein. Qn the part of the city it is insisted that it was entirely competent to prohibit the addition of any foreign substance, which, of course, includes preservatives in milk offered for sale, whether the said foreign substance or added matter is or is not injurious to health, and that a buyer has the right to assume that the milk he buys will go through the natural processes of oxidation and decomposition. On the other hand, it is insisted that the Legislature cannot forbid or wholly prevent the sale of a wholesome article of food, and that this section of the ordinance is clearly distinguishable from those considered in the other cases which we have decided under this ordinance at the present term, in that, it cannot be justified as an exercise of power to prevent fraud or imposition, nor can it be sustained under the power of the Legislature or municipality to require a standard of purity for milk or other food products, but it strikes down the preservation of food and milk, which is a proper and lawful purpose in itself. The defendant insists that the use of formaldehyde or other'preservative is not to practice any form of deception, or to artificially improve the standard of the milk, but its purpose is to prevent decay in a product which without the presence of such preservative naturally becomes unfit for use in a very short period; and that there is a marked distinction between the protection of health by requiring a proper standard of purity and the prevention of imposition on consumers and the mere preservation of an article otherwise up to the standard, and the introduction of such preservative having no tendency to deceive consumers and purchasers. Another contention of the defendant is that the ordinance itself does not declare or ordain the adding of such a preservative an adulteration.

It will be seen that these diverse contentions raise a most important question, one somewhat more difficult of solution than either of those presented in the other milk cases considered by the court at this time.

The insistence on the part of the defendant has the full support of the Court of Appeals of New York in People v. Biesecker, 169 N. Y. 53. In that case a statute of New York, which provided that “no person shall sell, offer or expose for sale, ány butter or other dairy products containing a preservative, but tbis shall not be construed to prohibit the use of salt in butter or cheese, or spirituous liquors in club or other fancy cheese, or sugar in condensed milk,” was held unconstitutional. In that case Judge Cullen, speaking for the whole court, reviewed previous decisions of that court, sustaining legislation which prohibited the manufacture or sale of any article so compounded as to imitate butter, as in People v. Arensberg, 105 N. Y. 123, and People v. Elbler, 106 N. Y. 321, defining what should be deemed unwholesome or adulterated milk, and People v. Girard, 145 N. Y. 105, forbidding the manufacture or sale of vinegar containing any artificial coloring matter, but drew a distinction between the statutes upon which those cases rest and the statute prohibiting the use of a preservative in butter, and reached the conclusion that the latter could not be justified as an exercise of the police power to prevent fraud or deception on buyers and consumers, and that the preservation of food was a lawful and laudable object. The learned judge conceded that in the use of these preservatives there was danger of adulteration and of the use of processes injurious to the public health, and that the regulation of these subjects for the protection of the public health and the prevention of imposition on consumers, was within the power of the Legislature, and the propriety of its exercise could not be questioned, but that under the guise of regulation, the Legislature could not destroy the industry, and that it was not a valid regulation which, in dealing with the means of preserving food, makes the preservation of food itself an unlawful act; that ingredients and processes might be prohibited as unwholesome, or causing deception, but not solely because they preserve. It is well in all these eases to keep constantly in view the fundamental principles involved in them. Under our system of government the legislative branch is empowered, to enact all laws necessary to protect the public health, but it is conceded that its acts must have such a relation to the public health that the courts by-inspection can discern that they relate to and are convenient and appropriate to promote the public health and are not mere arbitrary provisions which the courts can see have no natural connection with the professed purpose of subserving the public health. Happily in these cases it is manifest upon the face of the ordinance that the Municipal Assembly was exercising its police power in regard to a subject affecting the public health, to-wit, an article of food of general use and prime necessity, and that the purpose of the ordinance was to preserve the purity of the milk supply and to secure to the people of St. Louis, pure and unadulterated milk. As said in St. Louis v. Liessing, “On no one subject has the police power been affirmed so often as the right to inspect and regulate the sale of milk and cream.” The subject-matter, then, was clearly within the powers of the city council to regulate, and the sole question remaining for us to determine at this time is whether, in the attempt to regulate the sale of milk, the Municipal Assembly went beyond the limits of legitimate legislation on that subject.

It is insisted by the defendant, and in that he is supported by the Court of Appeals of New York, in People v. Biesecker, 169 N. Y. 53, that this provision against the use of any preservative in milk is to be distinguished from those cases sustaining the exclusion of annatto and other coloring substances for the reason that the use of a preservative does not tend to deceive or mislead purchasers and consumers. We think the ground upon which this prohibition against the use of preservatives in milk rests is the right of the Legislature, and in this ease the Municipal Assembly, to pass all needful and proper ordinances to secure the purity of milk, and to prevent any tampering with milk by absolutely prohibiting the use of artificial preservatives therein. As said by the Court of Appeals of New York in People v. Girard, 145 N. Y. l. c. 109, “Food should be pure, absolutely and unquestionably pure. No trick should be played with it. The Legislature may resolutely protect it. ’ ’ The argument of the defendant that a preservative stands upon a different basis from mere coloring matter which is liable to deceive, is in our opinion more plausible than sound. It is a matter of common knowledge that milk is a necessary food of the sick and of the infirm, of the old and the young; that through the agency of impure milk the germs of many diseases are disseminated, and even where there is an absence of any deleterious impurity of the germs of specific diseases adulterated or diluted milk is not wholesome and nutritious. [Norfolk v. Flynn, 101 Va. l. c. 475.]

In State v. Schlenker, 112 Iowa 1, c. 645, the Supreme Court of that State said: ‘' But it is said that the Legislature had no power to forbid the sale, without deceit or fraud, of a harmless and wholesome article of food. This may be true, as a general proposition; but it is also true that in virtue of the police power it may pass such laws as are, or may reasonably appear to be, necessary for the health, comfort and safety of the people. . . . That the sale of milk to which water and boracic acid have been added may amount to a fraud upon the purchaser is evident. He has the right to assume that the milk he buys is unadulterated, and that it will go through the natural process of oxidation and decomposition. He may wish to use sour milk for culinary purposes, and has the right to assume that nothing has been added to prevent chemical change. . . . It maybe conceded that-the milk sold by defendant was not harmful to the health of those who used it; but it is certainly dangerous to the public to permit milkmen and those dealing in milk to adulterate it in such manner as to change its constituent properties. The statute does not deprive the defendant of his property, but it does impose upon Mm the duty of so using it that no-injury will result to others, most likely to he affected by a disregard on Ms part of the reasonable health regulations that it enacts.”

In that ease the defendant put boracic acid in the milk which he sold, and testified that he used it as a preservative, and that its use was necessary to keep the milk from souring, and he introduced experts to show that the quantity of boracic acid used tended to prevent decomposition and would have no deleterious effect on the consumer. The court held that it was not enough to show that the defendant did not intend to defraud, or that the milk he sold was unwholesome. If that be true, almost any law intended to protect the public health and safety might be overthrown; that it was enough that the adulteration such as prescribed by the statute might defraud and prove deleterious to the public health, or comfort; that the Legislature might well determine that the adulteration of milk, tends to facilitate vicious processes, and that it ought to be prohibited.

In Com. v. Waite, 11 Allen 264, the court used the following language: “It is innocent and lawful to sell pure milk, and it is innocent and lawful to sell pure water; arid the argument is that the Legislature has no power to make the sale of milk and water, when mixed, a penal offense, unless it is done with a fraudulent intent. But it is notorious that the sale of milk adulterated with water is extensively practiced with fraudulent intent. It is for the Legislature to' judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to. the nature of the case. They have seen fit to require that every man who sells milk shall take the risk of selling a pure article. No man is obliged to go' into the business; and by using proper precautions any dealer can ascertain whether the milk he offers for sale has been watered. The court can see no ground for pronouncing the law unreasonable, and has no authority to judge as to its expediency.”

In People v. Biesecker, 169 N. Y. l. c. 60, the court said: ‘ ‘ There is doubtless in the prosecution of these industries danger of adulteration and of the use of processes injurious to public health.” .

In State v. Layton, 160 Mo. 474, the act of March 11th, 1899, making it “unlawful for any person or corporation doing business in this State to manufacture, sell or offer to sell any article, compound or preparation of food, in which article, compound or preparation, there is any arsenic, calomel, bismuth, ammonia or alum,” came before this court on a prosecution of the defendant for selling and offering for sale Layton’s Health Food Baking Powder, a compound and preparation containing alum. The act'was challenged as unconstitutional because it was insisted that-the said baking powder was wholesome and innocuous and the small amount of alum used therein was not deleterious.' It was clear that the baking powder in question was not an imitation of any standard baking powder and there*; fore did not fall within the doctrine of State v. Addington, 77 Mo. 110, and State v. Bockstruck, 136 Mo. 356, but the constitutionality of the statute was upheld on the ground that it was competent for the Legislature to protect the health, morals and safety of the people, so long as enactments did not transgress the rights secured by the State and Federal Constitutions, and that the court approached the charge of invalidity and unconstitutionality of the act with the presumption in favor of the law, and that when it appeared that there was a dispute as to the wholesomeness of an article of food or drink, then it was a legislative question and the Legislature had the right to inquire for itself, and either prohibit or regulate its manufacture or sale -as to it might seem best; that the constitutionality of the act could not be made to depend upon the proof in each individual case whether the article was or was not wholesome. It was said in that case that if an article of food is so universally conceded to be wholesome and innocuous that a court may take judicial cognizance of that fact, the Legislature has no right under our Constitution to prohibit its sale or use. Much of the argument in this ease is predicated upon this last proposition, and the defendant insists that because formaldehyde works such a chemical change in the character of milk that it will' not sour, and because it is for this reason classed as a preservative, the Municipal Assembly could not lawfully prohibit its use in milk. The trial court refused to go into the evidence tendered that formaldehyde in proper quantities was not injurious to health. Evidently it cannot be said that the effect of formaldehyde in milk is so well known not to be deleterious, that the courts must take judicial cognizance of that fact. That its action is such that it changes the chemical properties of the milk so that it will not sour was established and conceded on the trial, and it was for this reason that it was insisted that, as it preserved the milk from souring, it was claimed to be highly beneficial. We cannot accept this conclusion. It must be recognized that it was- a legislative function, in the passage of this ordinance for the preservation of health, to insist that milk should have neither adulterants or preservatives placed in it, and to inquire as to the effect thereof. The Municipal Assembly may have investigated and found this very fact, that when formaldehyde or boracic acid was placed in milk it would change its chemical properties and prevent its souring, and prevent it going through natural processes of oxidation and decomposition, and that thereby the housewife desiring to have the milk,sour for culinary purposes, or the physician administering it as food to children and sick persons would be misled in his calculation as to its effect on his patients. But in addition to this, the Municipal Assembly might well have reasoned that while one preservative used in carefully prepared proportions might not be injurious to the health of consumers, it would be exceedingly dangerous to permit the vendors of. milk with little or no scientific knowledge and less scruples, each to select his own so-called preservative, and use it without knowledge as to the quantities which were safe, which would open the door to all sorts of dangerous adulterations and to the use of highly injurious processes, and that the discovery 'of such practices might never be made until incalculable injury had occurred and that the only safe course, considering the nature of the business, was to prevent absolutely the placing of such preservatives in milk having such an effect as was shown in this case. In so doing, the Municipal Assembly in no manner destroyed or affected the defendant’s right of property. He had the right to sell pure and unadulterated milk of the standard prescribed by the ordinance, and the purchaser and the consumer of milk had the right to purchase from him pure milk unmixed with any foreign matter added to it, and this was what the ordinance required, no more and no less, and in so doing, it infringed no provision of the organic law of . this State or any article of the Federal Constitution. The'judgment of the St. Louis Court of Criminal Correction is affirmed.

Brace, C. J-, Marshall> Burgess, Vallianty Fox and Lamm, JJ., concur.


author: VALLIANT, J.

text:
    THE STATE ex rel. ABEL et al. v. GATES, Judge.
    In Banc,
    October 25, 1905.
    1. PROHIBITION: Jurisdiction: Equity: Sufficiency of Petition: Legislative Body. Where a demurrer has been filed to a petition in a suit to restrain a city council from enacting an ordinance giving to certain persons, or associations a franchise for furnishing gas to the city’s inhabitants, on the ground that the consideration for the eouneilmen’s vote is to be certain portions of the stock of the company receiving the franchise, and that demurrer has not been passed on, the Supreme Court will not prohibit the chancellor from passing on that demurrer. If the petition, though it defectively states a cause of action, yet presents a case not beyond the jurisdiction of a court of equity, the Supreme Court will not, under an apprehension that that court may not correctly decide the question, undertake to say that it does or does not state a cause of action. (Distinguishing Nagel v. Railroad, 167 Mo. 89.)
    2. LEGISLATIVE DEPARTMENT: City Council: Interference by Courts. It is not within the power of the judiciary to enjoin the General Assembly from passing a proposed statute, or to compel it by mandamus to do so. And to the extent that a city council is clothed with legislative power under authority from the State, it is, in the exercise of that power, as free from control by the judiciary as the General Assembly.
    3. -: -: -: Distinction. A city council does not stand on an equality with the General Assembly, because the General Assembly, as a body, is the legislative department of the State government, and because it is that, it is free from the control of the courts. But a-city council is not an essential part of the legislative department of the State; it possesses no inherent legislative power, and is not, in virtue of its own right, free from judicial control, but is so only when it is exercising-legislative power conferred by law upon it, and then only in. respect to the exercise of that power.
    4. -: -: -: -: Power Under Freeholders' Charter: City Government. The power conferred on a city by section 16 of article 9 of the Constitution to adopt a charter for itself covers only charter provisions essential to a city government. Within that scope such a charter has the force of an act of the General Assembly; but if such a charter should essay to confer on the municipal assembly powers not essential to a city government, but appertaining to State authority, it would not in that respect have the force of a statute.
    5. -: -: -: -: Impeachment for Fraud. An act of a city council, after its passage, even though strictly legislative in its character, may be assailed on the ground that it was obtained by fraud or corrupt influence.

      6. -:•-: -: Ministerial and Legislative Powers. A city council has both ministerial and legislative powers. In the exercise of its legislative powers it is not subject to judicial control; but in the exercise of its administrative or ministerial powers, it is. And it cannot exempt or shield itself from judicial control, by covering or clothing a vulnerable ministerial act with the form used to inclose a legislative act.
    7. -: -: -: -: Ministerial Act: Gas Works: Fraud: Prohibition. Where the petition in the equity case, seeking to enjoin a city council from entering into a certain contract with a gas company for the use of its streets, alleges that the rights which the city proposes to relinquish are in the nature of property rights,.held in trust by the city council for the people, and that the council has no authority to dispose of them; that the extension of a franchise for a certain number of years is in violation of the charter; and that the whole scheme is the result of fraud, it, in each case, states a question which the circuit court is competent to decide, and, though the questions may be defectively stated, the Supreme Court will not, by prohibition, prevent the circuit court from considering the case.
    Prohibition.
    Wbit denied.

      Gage, Ladd £ Small, Roes elle, Vineyard £ Thacker, Scarritt, Griffith £ Jones, Evans £ Finley and W. C. Culbertson for relators.
    (1) The attempt of respondent to restrain or coerce the action of the common council upon the ordinancesin questionis a plain usurpation of the legislative functions of government, contrary to the provisions of the Constitution. A clear line of demarcation between the several departments of government has been drawn by numerous decisions of our Supreme Court, and any attempt of one to impinge upon another has been readily and severely denounced. Albright v. Fisher, 164 Mo. 56; State ex rel. v. Allen, 180' Mo. 31; State ex rel. v. Meier, 143 Mo. 439; Taylor v.( Carondelet, 22 Mo. 105; St. Louis v. McCoy, 18 Mo. 238; McQuillin on Munici-' pal Ordinances, p. 260, sec. 163. (2) The passage of these ordinances granting natural gas franchises is a legislative act. Albright v. Fisher, 164 Mo. 56; State ex rel. v. Superior Court, 105 Wis. 651; Kittinger v. Traction Co., 160 N. T. 377; Alpers v. San Francisco, 32 Fed. 503; Hayes v. Railroad, 111 U. S. 237; Gas Co. v. Des Moines, 44 Iowa 505; Waterworks v. New Orleans, 164 U. S. 481; Wright v. Nagle, 101 U. S. 791; Kadderly v. City of Portland, 74 Pac. 710 ; Conery v. Waterworks Co., 41 La. Ann. 901; State ex rel. v. Railroad, 140 Mo. 539; Gas Co. v. Gas Co., 115 U. S. 650. (3) There are no allegations of fraud in the petition that would confer jurisdiction on the circuit court. Nagel v. Railroad, 167 Mo. 89; Barber Asph. Pav. Co. v. Field, 188 Mo. 182. (4) Even if the allegations of fraud in the passage of these natural gas ordinances were sufficient to raise the issue, still they would be immaterial. Fletcher v. Peck, 6 Cranch 128; Ex parte McCardle, 7 Wall. 514; United States v. Old Settlers, 148 U. S. 466; Soon Hing v. Crowley, 113 U. S. 710; United States v. Railroad, 142 U. S. 544; Angle v. Railroad, 151 U. S. 18; State ex rel. v. Hays, 49 Mo. 607; Brown v. Cape Girardeau, 90 Mo. 383; New Orleans v. Warner, 175 U. S. 145; Dreyfus v. Lonergan, 73 Mo. App. 345; Mayor v. Randolph, 4 Watts & S. 514; Kittinger v. Traction Co., 160 N. T. 387. (5) The rule must be made absolute as to all defendants. Railroad v. Mayor, 39 La. Ann. 127; Al-bright v. Fisher, 164 Mo. 66; State ex rel. v. Botts, 151 Mo. 362; New Orleans Waterworks Co. v. New Orleans, 164 U. S. 479. (6) Kansas City has full authority under its general power of control over the streets to grant a natural gas franchise and to insert therein any provisions germane to .that purpose, including the surrender by the city of its option to buy existing manufactured gas plants, as reserved in the Payne & Snyder ordinances. It is the settled law in this State that in order to grant a franchise for the use of the streets for a public purpose, for which the streets were dedicated, or acquired by condemnation or otherwise, such as the distribution of gas, or laying of a street railway or subway-of any kind for public use, it is not necessary that the city charter contain an express provision, authorizing the city to do so, but the provisions of the charter giving the city general control over its streets are sufficient to. authorize such grant. State ex rel. v. Corrigan, 85 Mo. 263; State ex rel. v. Murphy (Subway case), 134 Mo. 548; Julia Bldg. Assn. Case, 88 Mo. 258; Schopp v. St. Louis, 117 Mo. 136; St. Louis v. Tel. Co., 96 Mo. 629; Parrenbach v. Turner, 86 Mo. 416; Railroad v. Railroad, 31 Kan. 660. (7) The city has full power to release its option to purchase the property of the Kansas City, Missouri, Gas Co., as reserved in the Payne & Snyder ordinances. This option is not property held in trust.

      Isaac B. Kimbrell, Frank Hagerman, Cowherd & Ingraham, and Beed, Yates, Mastín & Howell for respondent.
    (1) The circuit court has jurisdiction of the subject-matter in controversy. We maintain: (a) If the members of a city council, in managing the business affairs of a city, corruptly conspire with the seekers for a valuable contract, and for the actual payment to them of bribe money, are in the act of making such contract, a court of equity is not without jurisdiction and power to enjoin them from consummating the fraud and delivering to their co-conspirators a valuable property right of the municipality, even if the business transacted takes the form of a resolution or ordinance. (b) If a municipality holds valuable property rights for the benefit of its inhabitants, and the charter nowhere authorizes the members of the council as the agents of the city to sell or dispose of the same, and such councilmen are about to do so for the joint enrichment of themselves and the corrupt grantees, a court of equity is not -without jurisdiction to enjoin either the councilmen or the granteés, although the act he accomplished hy means of an ordinance or resolution, (c) There being a large number of competitors desiring to furnish natural gas, if these individuals enter into a combination, conspiracy and pool to withdraw their . comp'etition in favor of one special applicant, and the members of the council have become partners in the proposed trust, pool and conspiracy and are to be financially benefited thereby, and have by agreement ceased to represent the city and become the corrupt representatives of themselves and their fellow conspirators, a court of equity is not without power to enjoin the members of such pool and conspiracy from consummating its corrupt object, (d) Th¿ law has not inoculated the members of a city council with any legal vaccine so that they may practice corruption, barter away the rights of the people, become, secret grantees in a contract they are making, flagrantly violate the duty of the agent to the principal as well as the charter which constitutes their power of attorney, and be immune from restraint by a court of equity. A city and the people of the city are as much entitled to the protection of the courts in enforcing proper performance of duty by its business agents as is an individual or a private corporation. (e) Beyond question those who have corruptly conspired with the agents of a city may be- restrained from consummating the fraud and taking to themselves the fruit of their iniquitous practices. (2) The council, in passing the MeG-owan ordinances, was exercising its business, not its legislative functions. A city possesses a dual capacity: one, business or proprietary, the other, governmental or legislative. In providing for water, gas and other public utilities for itself and its inhabitants, it is exercising its business capacity. Because of this and for the further reason that ordinances passed for such purpose do not rise to the dignity of enactments of the Legislature, courts of equity will inquire into the motives which enter into the passage of such ordinances and the making of such contracts. "Wolcott v. Lawrence Co., 26 Mo. 272; Crutch-field v. "Warrensburg, 30 Mo. App. 402; Woolf oik v. Randolph Co., 83 Mo. 506; Book v. Earl, 87 Mo. 246; State ex rel. v. Clark Co., 41 Mo. 42; Schmidt v. Dens-more, 42 Mo. 230; Saline Co. v. Wilson, 61 Mo. 237; Sturgeon v. Hampton, 88 Mo. 203; State ex rel. v. Harris, 96 Mo. 29; State ex rel. v. St. Louis, 145 Mo. 572; Steppen v. Pox, 56 Mo. App. 20; Donahoe v. Kansas City, 136 Mo. 665; Dillon, Mun. Corp. (4 Ed.), sec. 66; Whitfield v. Carrollton, 50 Mo. App. 98; Hannon v. St. Louis County, 62 Mo. 313; Barber Asph. Pav. Co. v. French, 158 Mo. 547; City of Valparaiso v. Gardner, 97 Ind. 1; City of Indianapolis v. Indianapolis, 66 Ind. 316; Dillon on Municipal Corporations (4 Ed.), 473-474; Crowder v. Sullivan, 128 Ind. 486; New Orleans Gas Light Co. v. City of New Orleans, 42 La. Ann. 188; Oliver v. Worcester, 102 Mass. 489; 21 Am. and Eng. Eney. Law, 951; McQuillin on Mun. Ord., sec. 163; Milhan v. Sharp, 15 Barb. 212 ; Negus v. Brooklyn, 52 How. Pr. 293; Colson v. Portland, Deady 481; People v. Canal Board, 55 N. T. 390; Green v. Mumford, 5 R. I. 417; Walla Walla City v. Walla Walla Waterworks, 172 U. S. 8; Pike’s Peak Co. v. Colorado Springs, 105 Fed. 11; Electric Co. v. City, 102 Fed. 663; State ex rel. v. Rodgers, 107 Ala. 456. (3) The officers of a municipality, as to the property of a city, are trustees in the management of such property, and their acts, if ultra vires or fraudulent, may be enjoined even if they be in the form of resolutions or ordinances. Roberts v. Louisville, 92 Ky. 95; Davis v. Mayor, 1 Duer 451; People v. Sturtevant, 5 Seldon 263; People v. Dwyer, 90 N. T. 402; Trading Stamp Co. v. Memphis, 101 Tenn. 181; Lewis v. Waterworks, 19 Col. 236; Spring Valley Water Works v. Bartlett, 8 Sawyer 555; Milhan v. Sharp, 15 Barb. 194; Sherlock v. Village of Winnetka, 59 111. 398; Stevens v. St. Mary’s Training School, 144 111. 336; Negus v. Brooklyn, 52 How. Pr. 293; Calson v. Portland, Deady 481; People v. Canal Board, 55 N. T. 390; Railroad v. Smith, 29 Ohio St. 291; Davis v. Society, 75 N. Y. 369; 20 Am. and Eng. Ency. Law, 1231; 21 lb. 951; Blaschko v. Mayor, 156 N. Y. 437; Electric Co. v. City of Wymore, 60 Neb. 199; McQuillin on Mun. Ord., secs. 163, 178; Spelling on Injunctions, sec. 18 (note), also sec. 712; Beach on Injunctions, secs. 1290, 1299, 1300 ; Dillon on Mun. Corp. (4 Ed.), sees. 94, 95, 908, 909, 910, 914, 915, 924; Tiedeman on Mun. Corp., sec. 394; State v. Saline County, 51 Mo. 350; Newmeyer v. Railroad, 52 Mo. 81; Matthis v. Cameron, 62 Mo. 504; Milhau v. Sharp, 15 Barb. 212. The transaction with McGowan relinquishes important property rights of the municipality and its inhabitants. Gas Co. v. Covington, 58 S. W. 805; Power v. Harlow, 57 Mich. Ill; 19 Am. and Eng. Ency. Law (1 Ed.), pp. 285, 286; Solard v. United States, 4 Pet. 512; Delassus v. United States, 9 Pet. 177; Smith v. United States, 10 Pet. 326; Bryan v. Kennett, 113 U. S. 179; Carleton v. Carleton, 72 Me. 116; Ide v. Harwood, 30 Minn. 195; City v. Eddy, 123 Mo. 557; State ex rel. v. Tel. Co., 189 Mo. 83. And it has been held that property acquired for public purposes of this character, cannot be sold at all. Lake Co. Water & Light Co. v. Walsh, 160 Ind. 32; Summer Co. v. Wellington, 66 Kan. 590; Huron Water Works v. Huron, 7 S. Dak. 9. . Or, that if salable at all, the law requires express charter power to authorize the council to convey it. Covington Gas Co. v. Covington, 58 S. W. 805. The right of purchase and to manufacture gas to the end of the franchise are property rights of a trust nature which cannot be diverted, (a) If they are of a trust nature they cannot be diverted. Lake Co. Water & Light Co. v. Walsh, 160 Ind. 32. (b) The right of purchase was of a trust nature. Huron Water Works v. Huron, 7 S. Dak. 9; Covington Gas Co. v. Covington, 58 S. W. 805. (c) It requires express authority in the charter to do it. Covington Gas Co. v. Covington, supra, (d) The duty to give manufactured gas cannot be surrendered. St. Louis v. Gas Light Co., 70 Mo. 69; Thompson v. Railroad, 101 U. S. 71. An attempt to evade the inhibitions of the law by subterfuges and indirections is a fraud upon the law and will not be tolerated. The averments of the petition are that the McGowan franchises., contrary to the provisions of the charter, renew until 1935 these Payne & Snyder franchises, which do not expire until 1925. The averments of the petition govern, not the language of alleged copies of the ordinances. 26 Am. and Eng. Ency. Law (2 Ed.), 657; Magdalen College Case, 2 Coke 76; Alexander v. Relfe, 74 Mo. 519'; Hill v. Swingley, 159 Mo. 50; Mayor v. Gill, 31 Md. 376; Hersey v. Board, etc., 37 Wis. 80; Railroad v. Board, 85 P'ed. 320; Elkhart Co. Lodge v. Carey, 98 Ind. 242; Brown v. Bank, 137 Ind. 668. The council’s powers cannot be delegated. This is especially true if, as contended by relators, they are legislative. St. Louis v. Howard, 119 Mo. 41; 1 Dillon on Mun. Corp. (4 Ed.), sec. 96; In re Quong, 14 Fed. 229; Cape Girardeau v.. Riley, 72 Mo. 223. (4) General prohibition can only issue where there is an entire lack of jurisdiction over the subject-matter; limited prohibition where there is jurisdiction over the subject-matter, but the court has gone beyond its powers. If a judge has no jurisdiction of the subject-matter, prohibition will lie. According to some of the cases, if in any particular respect, he has ho power to act, he may that far be restrained. So that, if Judge Gates has no power to decide the case presented as to the aldermen, he still can proceed against McGowan, Morgan, Small, The Kansas City, Missouri, Gas Company, William Clough, city clerk, Gus Pearson, city comptroller, A. E. Holmes, city treasurer, and Leo. H. Koehler, city auditor. Without first making application to Judge Gates this action is premature. State ex rel. v. Aloe, 152 Mo. 484 ; 23 Am. and Eng. Ency. Law, 200; State ex rel. v. Smith, 104 Mo. 419 ; State ex rel. v. Neville, 110 Mo. 345; Musick v. Railroad, 114 Mo. 309; Leonard v. Sparks, 117 Mo. 103; Burke v. Kansas City, 118 Mo. 309; State ex rel. v. Elkin, 130 Mo. 90.
   VALLIANT, J.

The relators pray that a writ of prohibition issue, addressed to the respondent, a judge of the circuit court of Jackson county, to prohibit him from entertaining jurisdiction of a cause pending in that court.

The cause in question is a suit in equity instituted in the name of the State of Missouri, on the information and at the relation of the Prosecuting Attorney of Jackson county, plaintiff, against Kansas City, and certain individuals, named, as members of the Common Council of that city, the City Clerk, City Comptroller, City Treasurer, City Auditor, the Kansas City Missouri Gas Company, a corporation, and four unofficial individuals named as promoters of the project or scheme therein 'assailed. The defendants in the suit in equity are the relators in this proceeding. The statements in the petition in the equity suit are substantially to the following effect:

In 1865 a corporation was organized under the laws of this State to manufacture and furnish gas to Kansas City and its inhabitants, and a contract was entered into between that corporation and the city in which the use of the streets was granted for that purpose, and the corporation was to furnish gas to the people for $1.75 per 1000 cubic feet for a. period of thirty years. In 1895 the life of that corporation expired by its own charter limitation. In January, 1895, a new gas corporation, called, in the brief, the Snyder Company, was organized, and entered into contract with the city to furnish gas to the people until 1925 at the price of one dollar per 1000 feet. In August, 1895, a similar corporation was organized, called, in the brief, the Payne Company, with which the city made a like contract for the same period. The Payne Company was practically the old 1865 company, and succeeded to its tangible property. The Snyder Company built its works and laid its pipes. The effect of the two companies competing for trade was that the price of gas was reduced to 50 cents per 1000 feet.

In 1897 the two companies, by agreement with the city, were allowed to consolidate and operate as one, under the name of the Kansas City Missouri Gas Company, which is one of the defendants in the equity suit. Immediately after the consolidation the price of gas went up to one dollar per 1000 feet.

Under the contracts of 1895 with the Snyder and-Payne companies certain obligations were imposed on them and certain rights acquired by the city, among which were, first, the obligation of the companies, each, to furnish manufactured gas for the term of thirty years, that is, until 1925, for one dollar per 1000 feet; second, to sell their plants to the city at any time after 1907 at a valuation to be ascertained in a manner therein specified; third, to hold their franchises subject to the provisions of the city charter, among which was that they should not be renewed or extended before the last two years of their existence, that is, not before 1923. These obligations of the companies and rights of the city were continued in the contract with the consolidated company, wherein it was also stipulated that the basis of the valuation of the property, when the city should elect to purchase it, should be the then actual value of the physical property “exclusive of the value of the stock, unexpired franchise, earning capacity,” etc., or as construed by the counsel for the respondent, the value of old iron and material.

The consolidated company, the Kansas City Missouri Gas Company, was in the field operating under that contract and subject to those conditions in 1904 when natural gas in great quantities was discovered to exist in the vicinity of Kansas City.

After this discovery five different companies or associations were formed, each for the purpose of engaging in the business of furnishing natural gas to the inhabitants of Kansas City, and each made application to the Common Council for authority to construct works, lay pipes and mains in the streets, etc., for this purpose. Thereupon the Kansas City Missouri Gras Company, with the unofficial individual defendants above referred to, conspired with certain others, including members of the five proposed competing companies above mentioned, to shut off the threatened competition and obtain for themselves and their coconspirators a monopoly of the business, besides the annulment of the city’s rights and the consolidated company’s obligations above mentioned and that by the means presently mentioned, did on December 7, 1904, obtain the passage through the Common Council of an ordinance, numbered 27459, the nature of which will be presently mentioned. That ordinance was vetoed by the mayor on December 9, 1904, On April 27, 1904, an ordinance numbered 28549, identical' in title and of similar purport, except in points of minor detail, was passed by the Common Council, and was, at the time of filing the original petition in the equity case, pending before the Mayor for his approval or veto. The Mayor has since vetoed that ordinance also, and the defendants who are members of the council are now threatening to and will unless restrained pass it over the veto. Upon the filing of the petition in the equity suit, the respondent, thfe judge of the circuit court, issued a temporary restraining order enjoining the members of the Common Council and other city officers from passing, signing or giving effect to either of the proposed ordinances and enjoining the .grantees from accepting the same. Thereupon the defendants in that suit filed their petition in this court for a writ of prohibition. It is unnecessary to set forth in full the first ordinance, No. 27459, or the second one, No. 28549, now pending before the Common Council on a proposition to pass it over the Mayor’s veto. For the purpose of determining whether a writ of prohibition shall issue as prayed, it is sufficient to' say of the contents of the last-named ordinance, as stated in substance in the petition in the equity suit, that it purposes to grant to the unofficial individuals named therein as defendants and their assigns the right to use the streets in which to lay pipes and erect necessary works to supply natural gas to the inhabitants of the city for a period of thirty years, authorizes them to acquire the property of The Kansas City Missouri Gas Company, and exercise the rights now possessed by that company, and when they shall have taken over the property and rights of the company they are relieved of the obligation to furnish manufactured gas (which the petition says is superior and safer than natural gas) on the terms and at the price in the existing contract required, yet extends the rights that the present gas company has under existing contract for a period of ten years beyond its present contract limit, contrary to the charter provision that it should not be extended or renewed until within two years of the expiration of its limit, and annuls the city’s right to purchase the property on the advantageous terms mentioned. Counsel for relators in their brief contend that the proposed ordinance does not relieve the grantees therein of the obligation to furnish manufactured gas at the stated price, and in support of their contention quote from the ordinance itself. Counsel for respondent do not agree to that interpretation of the ordinance; which of the two interpretations is correct is a judicial question which the circuit court can decide. It is not a vital question, however, in this prohibition proceeding, though it may have more significance in the equity suit (as to which we express no opinion), but however that fact may be, as the case now before us stands on demurrer to the return we look to the pleadings alone for the facts.

The petition alleges that the passage of this ordinance is the result of a conspiracy between the grantees therein named and tire persons composing the five other companies above mentioned who were seeking similar grants, and the members of the Common Council, all of whom are named, in which it was agreed that those members of the council were to have shares of stock in the corporation to be formed, and that those members of the council agreed with the grantees named in the ordinance that in consideration of the shares of the stock to be given them or to others for them they would vote for the passage of the ordinance. It is alleged in the petition that the prosecuting attorney can not state how much stock was to go to each member of the council named, but that the stock was to be divided for their benefit, and that was the price of their votes. It is averred as a legal proposition in the equity petition that the rights secured to the city under the contracts with the former companies and with the consolidated company are rights held by the city in trust for the people and that the city as trustee has no right to surrender them.

The foregoing is a very brief, perhaps it might be called a meager, statement of the facts of this case, but for the purpose of considering the question of the jurisdiction of the circuit court in the premises, it is sufficient. This cause was argued and submitted to this court for its decision on a demurrer to the return of the circuit judge showing the above facts.

There are two main propositions on which the relators rely: first, that the Common Council constitutes the legislative department of the city government and in the exercise of its discretion in passing the ordinance in question is independent of the judiciary; second, the petition in the equity suit does not state facts sufficient to constitute a case of fraud and corruption on the part of the relators.

I. We will consider the second proposition first. The sufficiency of the petition in equity in this particular is not to be judged in this case by the same rules as governed in the case of Nagel v. Railroad, 167 Mo. 89, to which we are referred, because we are here viewing the petition from a different standpoint. The itfagel case was before us on appeal from the judgment of the circuit court sustaining a demurrer to the petition. The circuit court in the exercise of its jurisdiction had adjudged the petition insufficient and we sustained that judgment. If we should adopt the theory of the relators on this point in this case we would take the case from the trial court before it had passed on the question. In the Nagel case the petition was not sufficient, yet we recognized the jurisdiction of the circuit court over the case and affirmed its judgment. So here, if the statements of fact are not sufficient to constitute fraud, the trial court will so decide, and there will be time enough for us to express our opinion on that question when it comes before us on appeal. If the case stated, or attempted to be stated, in the petition, is of a subject over which the circuit court has no jurisdiction, yet the court gives indication of a purpose to entertain it, an application for a writ of prohibition would be received, but if it be that the petition merely states defectively a cause of the nature of which the court has jurisdiction a writ of prohibition will not issue merely because it is feared that the court might erroneously decide that it was sufficient. We do not mean to imply from what is here said that the statements aiming to charge fraud in this petition are not sufficient or that they are of the same character as those in the Nagel case; we have no opinion on that subject, because the time for us to form an opinion has not arrived. In the case at bar the petition in equity states that- the scheme is to form a corporation to take by assignment the rights proposed to be conferred on the individuals named, and that shares of the stock of that corporation are to be given to the members of the Common Council named, in consideration of which they have agreed to vote for the ordinance. If the case is not beyond the jurisdiction of the circuit court on the ground that the Common Council is a legislative body independent of the judiciary, then that court has jurisdiction to decide whether or not the allegations of the petition are sufficient to make out a case of fraud.

And it has jurisdiction to pass on other questions that are discussed in the briefs, for example, that the rights acquired by the city under the existing contracts are in the nature of property rights held by the city in trust for the people and not to be bartered away in the maimer proposed, and other questions of like character to be decided according to the law, construing.the city charter and the ordinance in question. All such are questions for the judgment of the circuit court in the first instance and not to be taken away from that court on the apprehension that they may not be decided correctly.

A writ of prohibition will not go on such a theory.

II. The proposition, however, on which relators chiefly rely is that the Common Conncil is a legislative body and in passing an ordinance is independent of the judiciary.

This proposition rests for its foundation on article 3 of our State Constitution: “The powers of the government shall he divided into three distinct departs ments — the legislative, executive and judicial — each of which shall he confined to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted.”

It is not within the power of the judiciary, therefore, to enjoin the General Assembly from passing a proposed statute or compel it by mandamus to do so. And to the extent that the Common Council of Kansas City is clothed with a legislative power under authority of the State, it is, in the exercise of that power, as free from control by the judiciary as the General Assembly itself. Yet an organization like the Common Council does not stand on an equality with the General Assembly even in this respect, because the General Assembly, as a body, is the legislative department of the State government, and because it is in itself and in its own right the legislative department of a' State it is free from control. But a common council is not an essential part of the legislative department of the State; it possesses no inherent legislative power and is not, in virtue of its own right, free from judicial control, but is so only when it is exercising legislative power conferred by law upon it and then only in respect of the exercise of that power. Nor does an act of a common council, after its passage, even though it be strictly legislative in its character, stand on exactly the same plane as an act of the General Assembly, for that whereas the validity of an' act of the General Assembly cannot he impeached in a conrt on the ground that its passage was obtained by fraud or corrupt influence, yet an ordinance may be so assailed. [Knapp, Stout & Co. v. St. Louis, 156 Mo. 353; Barber Asphalt Co. v. French, 158 Mo. 534, l. c. 547.]

A common council or board of aldermen may have, and indeed such bodies usually do have, both ministerial or administrative powers and governmental or legislative powers. They are mere agencies of the State government exercising delegated powers. In the exercise of their legislative powers they are not subject to judicial control, but in the exercise of their ministerial or administrative powers they have no such exemption. And even though when acting in either capacity they speak in the form of an ordinance, yet if what they say is not the promulgating or the making of a law, they are not exercising legislative powers. If, for example, the city owns a certain lot of land which the common council has authority to sell, and the common council, pursuant to an agreement with a purchaser, should pass an ordinance directing the mayor, upon payment of a certain sum of money, to execute a deed conveying the lot to the purchaser, would any one say that in the passage of the ordinance the council was exercising legislative power? The law in such case regards the substance of the act, not the form of its execution. A municipal. assembly, a common council, board of aldermen or body of that kind, by whatsoever name it may be called, derives its powers from the city charter, and, ordinarily, the charter is the grant of the State Legislature and has the force and effect of a statute. Under our State Constitution of 1875, a city having a population of 100,000' or more may frame a charter for itself subject to the Constitution and laws of the State. [Sec. 16, art. 9, Const.] The effect of that, provision of the Constitution is to transfer from the General Assembly to -tbe inb.abitan.ts of such city, if they elect to exercise it, tbe legislative power to frame a charter, tbe charter when adopted to have tbe same force and effect as it would have bad if, in tbe absence of that Constitutional provision, it bad been granted by tbe General Assembly. Tbe power conferred on a city by that clause of tbe Constitution covers, however, only tbe making of a charter for city government; it does not take from tbe State Legislature, or confer on tbe city, tbe power to make laws other than those appertaining to a city government. Therefore, though a charter framed by tbe freeholders and adopted by tbe people should essay to confer on tbe common council powers not of essence of city government, but appertaining to State authority, it would not in that respect have tbe force of a statute. But within tbe legitimate scope of tbe power conferred by tbe Constitution, tbe freeholders’ charter, when adopted by tbe inhabitants of tbe city in tbe manner prescribed, has tbe full force and effect of a statute.

It is essential to a well-organized city government that it should have both ministerial or administrative powers and legislative powers. These are usually confided to a mayor and board of aldermen or common council, as it is called in tbe charter of Kansas City, and their acts, both ministerial and legislative, are usually effected through tbe form of ordinances. If tbe city has a piece of property which it desires to sell, an ordinance is passed directing tbe mayor or some other officer to execute a deed; if a contract for tbe building of a fire-engine bouse is to be entered into, an ordinance is passed authorizing tbe proper officer to sign tbe contract ; if regulations are to be made governing tbe running of street cars or other vehicles on tbe streets or for tbe preservation of the health or safety of tbe people, an ordinance is passed. Thus, the ordinance is tbe form of official utterance, whether tbe act be ministerial .or legislative. The form in which the act is expressed is immaterial; the act done denotes its own character. ■A common council cannot shield a vulnerable ministerial act by covering it with the form used to inclose a legislative act.

In State ex rel. Subway Co. v. St. Louis, 145 Mo. 551, opinion by Burgess, J., the difference in the natures of these powers exercised by the municipal assembly, and their liability to control in the one class and freedom from control in the other, are pointed out, and quoting with approval from Ill. Trust & Sav. Bank v. City, 76 Fed. 282, it was said: “In contracting for waterworks to supply itself and its inhabitants with water, the city is not exercising its governmental or legislative powers, but its business or proprietary powers. The purpose of such a contract is not to govern its inhabitants, but to obtain a private benefit for the city itself and its denizens.”

And in Donahoe v. Kansas City, 136 Mo. l. c. 665, this court quoted with approval from McKenna v. St. Louis, 6 Mo. App. 320, wherein it is said: “Municipal corporations are considered by law in two aspects. In one, their functions are chiefly ministerial and relate to corporate interests only. These include the making and improving of streets, the construction of sewers and other improvements and keeping them in repair, the holding of property for corporate purposes, etc. But as to these matters of strictly corporate interest there are often duties to be performed of a legislative or judicial character. In the other aspect, the corporation is regarded as holding a quasi delegated sovereignty for the preservation of the public peace and safety and the prevention of crime. This includes the maintenance of a police force, the appointment of officers charged with the public health, the establishing of regulations for the suppression of vice, and other matters of public concern In which all people have a common interest .which it is the chief end of every good government to protect.”

These distinctions have been pointed ont in later decisions by this court (Ely v. St. Louis, 181 Mo. 723; Ruppenthal v. St. Louis, 190 Mo. 213); and are well observed in other jurisdictions. [Valparaiso v. Gardner, 97 Ind. 1; New Orleans Gas Lt. Co. v. New Orleans, 42 La. Ann. 188; Oliver v. Worcester, 102 Mass. 489; Spring Valley Water Works v. Bartlett, 8 Sawyer 555, and other cases cited in the brief for respondent.]

In Albright v. Fisher, 164 Mo. 56, which is relied on by relators, this court by its writ prohibited a circuit judge in St. Louis from enjoining members of the Municipal Assembly from passing an ordinance authorizing a street railroad company to extend its tracks through a certain street. That case was analogous to this in one important fact, that is, the ordinance sought to be enjoined was one conferring authority on a public utility corporation to use a street of the city. But in that case the right of the Municipal Assembly to grant the authority was challenged only on the ground that the requirements of an act of the General Assembly, of June 19, 1899, had not been complied with, in this, that the consent of the abutting- property-owners along the street had not been obtained. As the case was presented to this court, it was seemingly conceded that the passage of the ordinance was a legislative act, but it was contended that the constitutional provision that exempted the State Legislature from control of the judiciary did not apply to a Municipal Assembly. The main point in the opinion was expressed in these words (l. c. 64): “Taking this established doctrine of this court as a basis and a premise, it must needs follow that when the Municipal Assembly of the city of St. Louis is engaged in the performance of its legislative functions, it is quite beyond the power of the courts to interfere with the exercise of those functions in any manner whatever.” That was the law point on which the case turned and to that proposition we adhere. The contents of the ordinance in that case were not before the court further than they might be inferred from the title; the question of whether the ordinance was in effect a contract or a legislative act was not presented to the court for consideration and was not decided. ,

But in the case at bar the nature of the ordinance, the passage of which the circuit court is asked to enjoin, is shown to be merely that of a contract, by which the Common Council, in its ministerial or administrative capacity, is proposing to grant to certain individuals the use of its streets for certain purposes and relinquish certain rights that the city has under its former contracts. There is no legislative character about it. The mere fact that it takes the form of an ordinance does not change its character. If instead of stating, as the petition in the equity case does, that the members of the Common Council were about to pass an ordinance to the effect stated, it had stated that they were about to enter into a contract to that effect, it would have been as good, perhaps better, pleading, because it is the ultimate fact and not the evidence of the fact that should be pleaded. Now suppose the petition had stated the fact in that form, what would be thought of the answer if it should say, true it is we are about to enter into that kind of a contract and we are going to do it. for the price named, but we are going to do it in the form of an ordinance and therefore we are beyond the reach of the court? Yet that is in effect just what the relators say by their demurrer to the return. If the case were pleaded in that form it would unmistakably exemplify the difference between a ministerial and a legislative act.

The petition in the equity suit says that those rights of the city which it is proposed to relinquish are very valuable and are in the nature of property rights held by the Comm on Council in trust for the people and that the council has no authority to dispose of them; whether that is so or not, is a question which the circuit court is competent to decide. It also says that the extending of the rights of the present gas company at this time for a-period of ten years is in violation of the charter on that point; whether or not that is so is also a question for the circuit court. It also says, or attempts to say, that the whole scheme is the result of fraud; whether this is so or not, and whether as a matter of pleading the fraud is sufficiently stated in the petition, is also a question within the province of the circuit court to decide. We see no reason for interfering with the court in, the due consideration of the case.

Writ denied;^

All concur, except Marshall, J., who dissents on the ground/that in his opinion this decision is in conflict with .that in Albright v. Fisher and that in respect of the ordinance in question the Common Council is acting in r£s legislative or governmental capacity.