I am unable to concur in all that is said in the majority opinion in this case, and feel that it is my duty to express my reasons therefor, not with any idea that it will do any particular good, at this time, but for the purpose of placing myself on record with respect to the main question discussed and decided in this cause.
There are many principles of law stated in the majority opinion, with which I fully concur, and for the purpose of clearly defining my attitude in this case, I deem it best, at the outset, to state wherein I concur and wherein I dissent.
The following principles of law have passed into axioms, and I wish distinctly to be understood as fully agreeing to them. They are as follows:
First, I agree that the charter of St. Louis has all the effect of a legislative charter.
Second, I agree that under the charter of St. Louis that city has the power to control the use of its -streets; to abate nuisances; to regulate the running or speed of railroads inside of the corporate limits, and under the general welfare clause, to pass such ordinances, not inconsistent with the provisions of the charter or the laws of the State, as may be expedient in maintaining the peace, good government, health and welfare of the city, ‘ ‘ and to enforce the same by fines and penalties, not exceeding $500, and by forfeitures not exceeding $1,000. ’ ’
Third, I agree that the city cannot appropriate the streets to any use that will practically deprive the public of the use of the streets.
*146Fourth, I agree that the State may lawfully delegate a portion of its police powers to the city, and the city may exercise that power within its corporate limits.
Fifth, I agree that the city ordinance under discussion in this case, being section 1760 of the municipal code of St. Louis, commonly known as the ‘ ‘ Vigilant Watch Ordinance,” is a valid police regulation, and within the power of the city to enact, and as such, is binding upon all individuals and corporations using the streets, and needs no acceptance by any such persons or corporations to make it binding as a police, regulation.
Sixth, I agree that the city cannot contract away its police power, or bind itself by contract not to exercise it.
Seventh, I admit that there is an irreconcilable conflict between the case of Karle v. Railroad (55 Mo. 476) and the cases following it, and the case of Fath v. Railroad (105 Mo. 545), and the cases following it, and that for some unexplainable reason these two lines of cases have been running along through the reports when they could not be reconciled, and when they both depend upon the same principles of law, and cannot logically be distinguished or differentiated.
But I do not think any of these matters are at all decisive of the question involved in this case.
On the other hand I deny—
First, that the Legislature of the State could constitutionally delegate to the' city power to enact a law that would create a right of civil action between citizens inter sese.
Second, I deny that the power conferred by the charter of St. Louis upon the city to regulate the use of its streets; to abate nuisances; to regulate the speed of railroads, or the general welfare clause, confers upon the city the right to create such a civil cause of action, between citizens inter sese.
*147Third, I deny that such a right of action, between citizens inter sese, can arise ont of a mere police regulation.
Fourth, I deny that even .if such a power is conferred by the charter of St. Louis, or if such power can arise out of a mere police regulation, the city of St. Louis has even attempted- to exercise such a power. On the contrary, I assert that no such a law has been enacted by the city, and that no intention so to do can be properly gleaned from the Vigilant Watch Ordinance or from any other ordinance that the city has enacted.
Fifth, I deny that the discussion of the question here involved was unnecessary to the decision of the case of Fath v. Railroad (105 Mo. 545), and assert that if such discussion was unnecessary to the decision of that case, it is likewise unnecessary to the decision of the case ¿at bar, for the two cases are identical in this respect.
Sixth, I deny that the Vigilant Watch Ordinance is simply declaratory of the common law, and assert that if it is, it adds nothing to the common law; and moreover assert, that it is not in the power of the city to pass an ordinance that is simply declaratory of the common law.
Seventh, I deny that the cases from other jurisdictions cited in the majority opinion herein and in Jackson v. Railroad (157 Mo. 621), can be properly considered authority or precedent for the decision of this case, because the laws in such other jurisdictions either expressly permit the delegation by the State of legislative powers to a city, or the State statutes expressly give a right of action to citizens inter sese arising out of a violation of a municipal police regulation, or else such cases were not carefully considered, and are inaccurate, illogical and unscientific. Moreover, I assert that under the Constitution and laws of this State, and the decisions of this court, the power to make a *148law that will afford a right of civil action between citizens inter se.se, cannot be delegated to a municipality.
These general principles, and this separation of those things in the majority opinion which I agree to and which I dissent from, reduces the discussion of this case to a narrow compass..
The discussion naturally divides itself into three principal considerations, to-wit:
First, can the Legislature delegate to a city the power to enact a law that will afford the basis of a civil ■action between citizens inter sesef
Second, can such a right of action arise out of a mere police regulation? And subsidiary to this inquiry, can there by any logical, reasonable and scientific distinction made between the violation of the the Vigilant Watch Ordinance and a violation of the ordinance requiring citizens to remove ice from the sidewalk in front of their property, or a violation of any other police regulation?
Third, if the city of St. Louis has such a power under its charter, has it enacted any such law, or has it simply enacted police regulations and prescribed penalties for the violation thereof, and are such penalties the sole remedy afforded by such regulations, and have the courts the right to punish the offender in any other manner than is prescribed by such regulations?
I.
Can the Legislature delegate tó a city the power to enact a law that will afford the basis of a civil action between citizens inter sesef Section 1 of article 4 of the Constitution prescribes that, “The legislative power-, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled, ‘The General Assembly of the State of Missouri.’ ”
This court, in ‘ ‘ Opinion of Supreme Court Judges on Township Organization Law” (55 Mo. 298), said: *149“It is admitted, I think, by all, that this power to legislate and enact laws cannot be delegated by the General Assembly, to any other body; or, in other words, there can be no statute or law passed without the will of the General Assembly of the State, expressed in the legal form.
In State ex rel. v. Wilcox (45 Mo. l. c. 461), this court said: “It is undoubtedly true that under our form of government laws must be enacted by the legislative bodies to which the legislative power is committed by the Constitution. The legislators cannot divest themselves of the responsibility of enacting laws by a reference of the question of their passage to their constituents.”
The American and English Ency. Law (2 Ed.), vol. 6, p. 1020, lays down the doctrine as follows: “To the legislative department of government is confided the authority, under the constitution, or frame of government, to make, alter or repeal laws. . . . It is a doctrine frequently reiterated by the courts that the functions of the Legislature must be exercised by it alone and cannot be delegated.”
The same author says: “The term ‘legislative power, ’ means the power or authority, under the constitution or frame of government, to make, alter or repeal laws.” [18 Am. and Eng. Ency. Law (2 Ed.), 822.]
‘ ‘ The legislative power is defined as that of one of the three great departments into which the powers of government are distributed — legislative, executive and judicial — which is concerned with enacting or establishing, and incidentally, with repealing laws. ’ ’ [State ex rel. v. Hyde, 121 Ind. 26; Evansville v. State ex rel., 118 Ind. 441.]
This doctrine is so axiomatic in the law of this State that further citation of authority is unnecessary.
Section 4151, Revised Statutes 1899, prescribes, that, “The common law of England, and all statutes *150and acts of Parliament made prior to the fourth year of the reign of James I., and which are of a general nature, not local to that kingdom, which common law and statutes are not repugnant to or inconsistent with the Constitution of the United States, the Constitution of this State, or the statute laws in force for the time being, shall be the rule of action and decision in this State, any law, custom or usage to the contrary notwithstanding. ’ ’
Blackstone defines law to be, “A rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong/'’ [1 Chitty’s Blackstone, p. 29.]
In Badgley v. St. Louis (149 Mo. 122), this court had before it the -validity of the section of the charter of St. Louis which provides that whenever the city shall be liable in an action for damages, by reason of the unauthorized and wrongful acts, or of the negligence, carelessness and unskillfullness of any person or corporation and such person or corporation shall be liable to an action on the same account by the party injured, such person shall be joined in the suit against the city for damages, and no judgment shall be rendered against the city unless judgment is also rendered against such person. It was noted in the case that said provision of the charter was not in conflict with any express statute of the State. Yet it was held that the provision of the charter was unconstitutional because it prescribed a different rule of civil action in the city of St. Louis from that which obtains in any other part of the State.
In St. Louis v. Howard (119 Mo. 41), the validity of the provision of the city charter which prohibited the establishment or operation of any stone quarry, brick kiln, soap factory, slaughter house, bone or rendering factory within the distance of three hundred feet of any dwelling house, built or inhabited before such opening, location or'erection, without the consent, *151in 'writing, of the owner, and oecnpant or oecnpants of every such house, was involved. And it was held that the provision as to the consent of the owner or occupant of such house, was an unconstitutional delegation of power to the people.
In St. Louis v. Russell (116 Mo. 248), the city ordinance prohibiting the erection of a livery stable on any block without the consent of the owners of one-half of the ground in such block, was held to be an unconstitutional delegation of legislative power.
There are two kinds of'powers which may be conferred upon a municipality. The first is commonly called a legislative power, and the second a police power. The term “legislative power,” as so applied to a city, however, means only the power to pass rules and regulations for the government of the municipality, the conduct of its officers, and the conduct of the citizens with respect to the municipality. In no sense does the term “legislative power,” when used in reference to a municipality, mean the right to enact a law that will be a rule of civil action between citizens inter sese. The power to regulate the actions of citizens between each other, that may be exercised by the municipality, arises entirely out of the police power, and a right of civil action cannot arise opt of a mere police regulation.
Thus the power of St. Louis, under its charter, to regulate the use of its streets; to abate nuisances; to regulate the running and speed of railroad cars, or other vehicles; or to pass ordinances for the peace, good health and welfare of the city, is a mere police power; and paragraph 14 of section 26 of article 3 of the city charter gives the city only the power to’ enforce such regulations by fines and penalties not exceeding $500, and by forfeitures not exceeding $1,000, and nowhere confers, or attempts to confer, upon the city the right to enact a law that will afford the basis *152'of a civil action between citizens inter sese, for the violation' of such regulations.
Thus, it is obvious that under the Constitution and laws of this State it is beyond the power of the Legislature to delegate to a city the power to create •such a right of civil action, and it was clearly beyond the power of the board of freeholders, who framed the charter of St. Louis, to confer such a power upon the municipal assembly. I deem further discussion of this branch of the case unnecessary.
H.
Can such a right of action arise out of a mere police regulation? And subsidiary to this inquiry, can there be any logical, reasonable and scientific distinction made between a violation of the Vigilant Watch Ordinance and a violation of the ordinance requiring citizens to remove ice from the sidewalk in front of. their property, or a violation of any other police regulation? Tiedeman, in his excellent work on State and Federal Control of Persons and Property, vol. 1, sec. 1, says, £ £ The private rights of the individual, apart from a few statutory rights, which when compared with the whole body of private rights are insignificant in number, do not rest upon the mandate of municipal law as a source. ’ ’
Blackstone defines the police power to be, “The due regulation and domestic order of the Kingdom, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations.” [4 Blackstone Com., 162.]
Tiedeman sums up the power as follows: ££ It is to be observed, therefore, that the police power of the government, as understood in the constitutional law of the United States, is simply the power of the govern*153ment to establish provisions for the enforcement of the common, as well as civil, law maxims, sic utere tuo ut alienum non laedas.” [Tiedeman on State, etc., Control, p. 4.]
The controlling and underlying principle governing all police regulation is, that in all organized society certain natural rights must be modified, or abridged, so that there may not be a conflict between citizens in their intercourse with each other. Inasmuch as no citizen can compel any other citizen to forego the exercise of his natural rights, the power is held to exist in the government to prescribe such regulations as will prevent such conflicts, and such police regulations contemplate a penalty for the violation thereof, and are almost universally accompanied with such penalties.
• Police regulations are rules which the government prescribes for the conduct of the citizens, and the citizen is answerable to the government for the violation thereof. This power is very different from a legislative power. Under the latter is embraced all the power of the State, to prescribe rights and duties of citizens inter sese, and to afford remedies to the citizens for all violations of such laws by any other- citizen.
Under the Constitution of this State, all legislative power is vested in the General Assembly, and cannot be by it delegated to a municipality. Because of the recognized distinction between a mere police regulation and a legislative power, it is held, almost universally, that the former can be delegated, while the latter cannot.
The Legislative powers conferred upon municipalities in this State are limited to the right of the municipality to enact rules for the government of the city, its officers, and of the citizens with respect to the government.
Regulations concerning the use of streets; the erection of buildings; the licensing and carrying on of various kinds of business; the abating of nuisances; the *154opening and operating of stone quarries, slaughter houses, soap factories, vitriol factories, etc.; the establishment of a system of weights and measures; the manufacturing and sale of articles of food; the prohibiting the running of animals at large; regulating the speed of vehicles, and requiring the establishment of signals therefor; prohibiting the construction of wooden buildings; prescribingprecautions against fire; providing for the peace, good government, health and welfare of the city, and the citizens thereof, are mere police regulations, and the power to enact the same is usually conferred upon municipalities. But .it was never contemplated that a violation of any such regulations should afford a right of a civil action by one person against another. On the contrary, it was not only contemplated, but is expressly provided, in nearlv every instance, that the power conferred in this respect, upon a municipality, can be enforced only by a fine or forfeiture.
In Norton v. St. Louis (97 Mo. 537), this court held that the ordinance of the city of St. Louis which required the owner of the abutting property to remove ice from the sidewalk in front thereof, was a mere police regulation, and that a violation thereof afforded no basis for a civil action by the person injured against the abutting owner.
But in Jackson v. Railroad (157 Mo. l. c. 637), a distinction was drawn between a police regulation, requiring such abutting owner to remove ice from the sidewalk, and a police regulation regulating the speed of railroad trains within the corporate limits. And it was there said, that the distinction consisted in this, that it is the duty of the city to keep its sidewalks reasonably safe for travélers, and that it is responsible in damages for failure so to do, and that the city had no power to shift this responsibility upon an abutting owner without his consent, “ because in no sense a police regulation;” while the regulation of speed of *155trains within the corporate limits of the city is a police regulation. In other words, the distinction was stated to be, that where the duties enjoined are due to the municipality or public at large, a violation of the police regulation affords no foundation for such a civil action, but that where the police regulation is intended to regulate the action or conduct of persons, citizens or corporations, among themselves, a violation thereof will afford a basis for such an action.
I do not think such a distinction can logically or scientifically be drawn.
.Both such regulations arise out of the police power of the city. The power of the city to compel a property-owner to remove ice from the sidewalk in front of his property, derives its force solely from the police power of the city. So the power to regulate the action and conduct of citizens inter sese, so that each may have proper regard for the rights of the other, arises solely from the police power of the city. The principle upon which the liability of a city for failure to remove snow and ice from sidewalks rests, is that the snow and ice constitute a nuisance, and that it is the duty of the city to remove nuisances from its streets. The principle upon which speed ordinances or vigilant watch ordinances rests, is that trains that are run at a high rate of speed or without proper care, amount to a nuisance on the street. The duty to prevent or remove such nuisances rests upon the city. The duty can no more be evaded or shifted in the one case than in the other. Under its police power the city can require the abutting owner to remove the snow and ice from the sidewalk, and can prevent the railroad from running its trains in such manner as to be a nuisance. But the power of the city to punish a violation of such regulations is limited, both by the general law and by the charter of the city, to a fine or penalty or a forfeiture.
It is worthy of note, in this connection, that the distinction made in the Jackson case, supra, between the *156liability of one person to another for the violation of the ordinance requiring the one to remove ice from the sidewalk, and the violation of the speed ordinances of the city, is said to exist only as' to such instances of municipal police regulation. In none of the other respects, wherein a city is authorized to enact police regulations, is such a distinction made. The same section of the charter which confers upon the city the right to regulate the use of its streets, confers upon it also all the power it has to enact any other police regulation, and in none of the other instances in which the city is authorized to enact such regulations, does the duty provided for, rest, primarily, or at all, upon the city, but they all relate to matters concerning the conduct and action of the citizens inter sese, and are enacted purely upon the principles underlying the rule of sic utere tuo ut alienum non laedas.
Thus, the city is given power in the same section to regulate the erection of buildings; the carrying on of various kinds of business; the abating of nuisances; the opening and operating of stone quarries, slaughter houses, soap factories, vitriol factories, etc.; a system of weights and measures; the manufacture and sale of articles of food; the running of animals at large; the erection of wooden buildings; the taking of precautions against fires, and for the peace, good government health and welfare of the city and the citizens thereof. None of these are duties, or matters, devolving upon the city in its corporate capacity. They are all matters which affect the citizens of the city in their relation to each other. And the city as a political body has no other interest in the matter, and no other duty cast upon it, except to control the conduct of the citizens among themselves. All such matters stand exactly upon the same footing, and rest exactly upon the same legal principles as the regulating of the speed of railroads or vehicles on the streets or in the city. If the violation of one of such police regulations affords the *157basis of a civil action by one who is injured by sucb violation, then the violation of any of them affords the same right.
I am totally unable to comprehend upon what rule of construction a legitimate, scientific and logical distinction can be made between a violation of any such regulations and the violatioh of an ordinánce which requires the abutting owner to remove ice from the sidewalk in front of his premises. In my judgment, no such distinction exists, and if the violation of one of such police regulations affords a right of action by the person injured, then the violation of any other affords a similar right.
The majority opinion in this case is expressly based upon the proposition that the “Vigilant Watch Ordinance ” is a police regulation, and that the city had no power, except its police power, to enact such án ordinance.
The doctrine that the violation of the speed ordinances of the city constitutes negligence, per se, and affords a right of civil action to the person injured, was first announced in this State, in Karle v. Railroad (55 Mo. 476). The subject was not discussed or scientifically considered in that case, and no authority or prec-' edent in the law was cited in support of it. The only thing said about it in that case was in passing upon instructions given by the lower court to that effect, and this court disposed of the whole subject by simply saying, “The three instructions which declared a failure of the defendant to observe the regulations of the city ordinance in relation to the speed of trains, keeping head-lights and ringing the bell, to be negligence per se, were undoubtedly correct. These were violations of an express law, and of course amounted to negligence. ”
Thus it will be observed that the court treated a municipal regulation as an “express law,” without, in any manner, discussing the power of the Legislature to delegate to the city the right to enact a law to that *158effect. The court, in that case, did not place its decision upon the ground that the ordinance was a police regulation, nor did it attempt to justify the position taken on the ground that a mere police regulation can give rise to a right of civil action. On the contrary, the court assumed, unwarrantably I believe, that it was within the power of the city to enact a “law” on that subject; or otherwise stated, that the city had a legislative power in that respect.
Karle v. Railroad, supra, was followed by Wyatt v. Railroad (55 Mo. 489), and the ordinance was there also treated as a law passed by competent legislative authority. The law was not held to be justified by, or properly referable to, the police power of the city; nor was the subject in hand discussed in that case.
The Karle case was also followed by Norton v. Ittner (56 Mo. 352), but there was no discussion of the principles involved, further than to say, “Negligence may be asserted as a matter of law, where there has been a breach of law, or a city ordinance, as in Karle v. Railroad (55 Mo. 476).”
The rule laid down in the Karle case was quoted in Stoneman v. Railroad (58 Mo. l. c. 595), but the subject was not discussed, and the validity of such an ordinance was not involved in that case, because the action was brought under the State statute in reference to the killing of animals.
The Karle case was also cited in Doss v. Railroad (59 Mo. l. c. 37), but not upon the proposition here involved, for there was no such question in that case. The same is true of Meyers v. Railroad (59 Mo. 230).
The Karle case was also cited in Evans v. Railroad (62 Mo. l. c. 58), but the point here under discussion was not involved in that case, for the'reason that the negligence there complained of was a violation of the State statute requiring the ringing' of the bell or the sounding of the whistle.
The Karle case was' also referred to, and cited up*159on other points, in Maher v. Railroad (64 Mo. l. c. 276), but there was no question of the violation of the city ordinance involved in that case, and there was no discussion of that subject in that case.
The same is true of Kelly v. Railroad (70 Mo. 604).
The Karle case was also cited in Zimmerman v. Railroad (71 Mo. l. c. 484), butnot upon the point under discussion, and there was no city ordinance involved in that case, but the negligence complained of was a violation of the State statute.
. The Karle case was also cited in Yarnall v. Railroad (75 Mo. l. c. 584), but not upon the point here involved, and there was no city ordinance involved in that case, the negligence complained of being common law negligence.
The Karle case was also cited and followed in Bowman v. Railroad (85 Mo. l. c. 538), but there was no discussion of the subject beyond what was said in the Karle case, and the question was not otherwise discussed or decided.
The Karle case was also cited in Sullivan v. Railroad (88 Mo. l. c. 183), but that was an action for common law -negligence, and there was no ordinance involved, and the subject, therefore, was not discussed. The reference, in that case, was to other principles decided in the Karle case.
Karle v. Railroad was cited and followed in Keim v. Railroad (90 Mo. l. c. 321), but there was no discussion of the subject, and the ordinance was not attributed to the police power of the city, but on the contrary, the opinion expressly stated that the ordinance had been accepted by the defendant.
The Karle case was cited in Muehlhausen v. Railroad (91 Mo. 346), but upon a different point from that here involved. There was no city ordinance involved in that case, but the violation of the State statute regulating the running of cars was involved.
The Karle case was also cited in Dunkman v.Rail*160road (95 Mo. 244), but not upon the point here involved, for there was no snch question in that case.
The same is true of Hudson v. Railroad (101 Mo. l. c. 29).
The Karle case was also cited and followed in Hanlon v. Railroad (104 Mo. l. c. 387), but the subject was not discussed further than to say, “It is well settled that a failure to observe such reasonable and wholesome requirements constitutes negligence in itself; ’ ’ and Karle v. Railroad, supra, and Murray v. Railroad (101 Mo. 236), were cited as authority for the proposition.
In the last case cited, the only thing said of the ordinance was, “The evidence shows beyond all controversy that there was no flagman at the crossing, and this violation of the ordinance was negligence per se.”
The Karle case was also cited in Spillane v. Railroad (111 Mo. 565), but not upon the question here involved, and the question was not discussed in that case.
The Karle case was also cited in Prewitt v. Eddy (115 Mo. l. c. 302), but not upon the point here involved, that case going off on the humanitarian doctrine.
The Karle case was also cited in Mitchell v. Bradstreet Co. (116 Mo. 247), but not upon the point here involved, for there was no such ordinance involved in that case.
The Karle case was also cited and followed in Gratiot v. Railroad (116 Mo. l. c. 463), but there was no further discussion of the subject than to say, that a violation of the city ordinance regulating the speed of trains is negligence per se.
The Karle case was also cited in Moore v. Railroad (126 Mo. l. c. 278), but not upon the point here involved, for there was no such ordinance involved in that case.
The same is true of Scott-Force Hat Co. v. Hombs (127 Mo. 403).
*161Karle v. Railroad, supra, was also cited in Lloyd v. Railroad (128 Mo. l. c. 607), but tbe negligence charged in that case was a violation of tbe State statute requiring tbe bell to be rung or tbe whistle sounded, and no such ordinance was involved.
In Eswin v. Railroad (96 Mo. 295), tbe whole discussion of tbe subject consisted of this: “A violation of tbe ordinance is, as we have often said, negligence per se. [Keim v. Railroad, 90 Mo. 314, and cases cited.] ”
In Schlereth v. Railroad (96 Mo. l. c. 515), tbe question was not discussed further than to say, “And it is tbe established law of this court that tbe violation of municipal ordinances which regulate tbe rate of speed, etc., of trains, is negligence per se. [Keim v. Railroad, 90 Mo. 314, and cases cited.] ”
In Grube v. Railroad (98 Mo. l. c. 336), it was said: “There can be no doubt that tbe State has power to regulate tbe speed of trains, and to make other reasonable regulations for tbe movement of locomotives and trains of cars in cities, towns and other crowded places. Such regulations Concern domestic government, and are but tbe exercise of tbe police power of tbe State. [Railroad v. Deacon (63 Ill. 91); Railroad v. State (51 Miss. 137); Knobloch v. Railroad (14 Am. & Eng. R. R. Cases 625); Tiedeman on Lim. of Police Powers, section 194.] Tbe power to enact such regulations may. be delegated to cities and towns. [Merz v. Railroad, (88 Mo. 672.)]”
In Kellny v. Railroad (101 Mo. l. c. 77), tbe subject was disposed of by saying that, “tbe violation of municipal ordinances which regulate tbe speed of trains is negligence per se, and that every person on tbe public street in a municipality has a right to presume that tbe railroad will obey such ordinances.”
Drain v. Railroad (86 Mo. 574), was based upon a violation of a city ordinance, but tbe validity of such *162ordinance was not discussed or decided. The questions discussed by this court in that case, were contributory negligence, and excessive damages. .
Dickson v. Railroad (104 Mo. 491), was based partly upon a violation of a city ordinance. No question appears to have been raised as to the validity of the ordinance. But on the contrary, its validity seems to have been assumed by counsel (l. c. 498), and the only remark madé, by this court, on the subject was, “The failure to station a watchman at the crossing, when required by ordinance, has been held negligence per se” (l. c. 501).
I have thus reviewed, at painful length, the cases in which the doctrine, under discussion, has been referred to by this court prior to the case of Jackson v. Railroad (157 Mo. 621).
The doctrine was first announced in the Karle case, and as above pointed out, it was there treated as an “express law,” which it was assumed, without argument, that the city had the power to enact. No attempt was made in that case to place it upon the police power of a city. That case is the foundation for the whole doctrine, and the subsequent cases reviewed herein have simply followed it. In fact, counsel do not seem to have questioned the power of a city to enact a law on the subject. Like the court, they seem to have assumed that the city possessed such a legislative power.
It is only lately that counsel and the courts have awakened to an appreciation of the principles involved in the question.
The first case, in which the suggestion was made that the city had the right, under its police power, to enact such a regulation, was Merz v. Railroad, 88 Mo. 672. This was followed by a like suggestion in Grube v. Railroad, 98 Mo. 330. In Prewitt v. Railroad, 134 Mo. 615, the matter was disposed of by saying: “The power of a city under its charter to pass such an ordinance as a police regulation is not questioned.”
*163Prior to the Merz case, it seems to have been assumed that such regulations were enacted in pursuance to a legislative power. In Grube v. Railroad (98 Mo. l. c. 336), it was expressly held that the State had the power to enact laws regulating the speed of trains, etc. It was said in that case that such regulations are an exercise of the police powers of the State, and that such police powers may he delegated to cities and towns, and Merz v. Railroad (88 Mo. 672) was cited as authority.
In the Merz case, 2 Dillon on Municipal Corporations, section 713, and 2 Redfield on Railways, 577-8, were quoted. Both of said authors, in the sections quoted, were discussing the police powers of a city to regulate the running of trains, and both stated the universally admitted doctrine, that a city has such a police power. But neither author, in the sections quoted, was dealing with the question here in hand. The question of whether a civil right of action could arise out of a violation of such a police regulation, was not discussed or considered by those authors in the sections quoted.
In Grube v. Railroad, the same condition existed, and it was assumed, without discussion, that the violation of a police regulation would afford a civil right of action between citizens inter sese.
In Bluedorn v. Railroad (108 Mo. l. c. 444), this court, in speaking of such city ordinances, said, “It is well to hear- in mind that laws and ordinances regulating the speed of railroad trains are police regulations purely,” and cited Grube v. Railroad, supra; Knobloch v. Railroad (31 Minn. 402); Railroad v. Deacon (63 Ill. 91); Thorpe v. Railroad (27 Vt. 140); Dillon on Municipal Corporations, and Redfield on Railways, above referred to, and held that a city had the authority, under its general police power, to enact such ordinances. There was no other or scientific discussion of the proposition in that case.
Thus it appears that prior to the decision in Jackson v. Railroad (157 Mo. 621), there had been no at*164tempt made to discuss or decide the question, here involved, upon legal principles. The Jackson case was decided by Division No. 2 of this court.
Hutchinson v. Railroad (161 Mo. 255), was decided by this court, in banc, prior to the decision of the Jackson case, and it was held that a violation of the city ordinance limiting the rate of speed of a railroad train, “was negligence per se, and if it was the cause of the accident, the defendant was liable, unless the deceased contributed to the result by her own negligence. This proposition has been so often and so elaborately discussed and demonstrated, and as a rule of law so often declared, by this court, that it is now only necessary to restate it and cite some of the decisions in which it is discussed.”
And some of the cases hereinbefore digested, beginning with Karle v. Railroad, supra, and ending with Prewitt v. Railroad (134 Mo. 615), were cited, but there was no discussion of the principles according to scientific rules in any of those cases.
Jackson v. Railroad, supra, was cited in Weller v. Railroad (164 Mo. l. c. 205), and the matter was disposed of in a single sentence as follows: “It is asserted that plaintiff’s first'instruction is erroneous in that it based her right of recovery upon the violation of an ordinance of the city, but as the right to maintain this action upon that ground was recognized by this conrt in its former opinion, and, the question expressly ruled adverse to that contention in the recent cases of Jackson v. Railroad (157 Mo. 621), and Hutchinson v. Railroad (161 Mo. 246), it is unnecessary to say more upon that subject.”
Wendler v. People’s House Furnishing Co. (165 Mo. 527), was an action for damages caused by falling into an elevator- shaft on the inside of the defendant’s place of business. There was a city ordinance relied on, which required elevator shafts to be provided with a railing or guard to prevent persons from falling into *165them. The validity of the ordinance was not discussed further than to say, “the validity of the ordinance in question, the obligation of defendant to obey it, and his liability for failure so to do, are propositions of law clearly established.” [l. c. 541.] But it was said that the provisions of the ordinance had not been read in evidence, and were therefore not properly in the case, and that, “the whole ordinance might have been dropped out of this case entirely without affecting its merits.”
Thus it appears that neither prior to the Jackson ease, nor subsequent thereto, until this case, was there any attempt made in any of the cases cited to discuss the question whether the violation of a municipal police regulation can afford a basis for a civil action between citizens inter sese. And this case is the first case in which that question has been attempted to he discussed, upon legal principles, by this Court In Banc. For this reason I do not consider that the cases referred to have settled the proposition.
At the outset of this discussion, therefore, I desire toVrepeat that, in my judgment, a municipality has complete power to enact police regulations, limiting the speed and regulating the running of trains, as also to enact other police regulations necessary to the peace, health, and welfare of its citizens, and the likq But I think the power of a city, under its police power, is limited to punishing a violation of such police regulations by fines, forfeiture and imprisonment, and cannot afford the basis of a right of civil action between’ citizens among themselves.
I have already indicated that, in my judgment, no valid distinction can he made between police regulations, no matter what their purpose may he, and that the distinction made in Jackson v. Railroad, supra, between ordinances requiring abutting owners to remove ice from the sidewalk,' and ordinances regulating the speed of trains, or the manner of running- trains, is untenable, for both derive their whole power and au*166thority from the police power. For this reason I think that the decision in Norton v. St. Louis (97 Mo. 537), and in Jackson v. Railroad, supra, cannot both stand together.
The decision in Jackson v. Railroad is based upon the case of Karle v. Railroad, and the other cases, hereinbefore analyzed in this State, and upon the doctrine laid down in 2 Dillon on Municipal Corporations (4 Ed.), 713, and 2 Redfield on Railways (5 Ed.), 578, which, as above pointed out, relate only to the police power of a city to regulate the speed of trains, and do not pertain to the question of whether such ordinances can afford a basis of civil action between citizens inter sese, and upon the following cases in other jurisdictions, to-wit: Knobloch v. Railroad (31 Minn. 402); Railroad v. Deacon (63 Ill. 91); Thorpe v. Railroad (27 Vt. 140); Railroad v. Haggerty (67 Ill. 113); Mason v. Shawneetown (77 Ill. 533); Hayes v. Railroad (111 U. S. 228); Shearman and Redfield on Negligence (5 Ed.), sec. 13; Railroad v. Young (81 Ga. 397); Railroad v. Curtis (87 Ga. 416); Railroad v.Stebbing (62 Md. 504); Correll v. Railroad (38 Ia. 120); Railroad v. Hensil (70 Ind. 569); Railroad v. Reidy (66 Ill. 45); Railroad v. Voelker (129 Ill. 540); Piper v. Railroad (46 N. W. 165); Railroad v. Terry (42 Tex. 451); Bott v. Pratt (33 Minn. 323); Wright v. Railroad (4 Allen 283); and the majority opinion in the case at bar cites no other authority upon the proposition.
A short review of the cases cited from other jurisdictions, and the doctrine stated by the text-writers referred to, is necessary and pertinent to the inquiry at hand.
Knobloch v. Railroad (31 Minn. 402), was an action for damages for killing the plaintiff’s cow. One of the acts of negligence relied ou was a violation of a city ordinance limiting the rate of speed to four miles an hour. The power of a city to enact such an ordinance, and the question, whether it was a law enacted *167under legislative power or simply a police regulation, was not discussed or decided. The defense was, solely, that the ordinance was void, because it was unreasonable, and in restraint of trade. No other point was made or decided in that case. The case, therefore, is of no value in determining the question here under discussion.
Railroad v. Deacon (63 Ill. 91), was an action for damages for killing the plaintiff’s horse. An ordinance limiting the speed of railroad trains, and providing a penalty for the violation thereof, was relied on. The defense was that the ordinance impaired the contract of the defendant’s charter. It was held that the charter was accepted subject to the power of the city to pass police regulations; that the Legislature had granted power to cities and towns to pass ordinances regulating the speed of cars, and that the State statute provided that railroad companies should be liable for all damages sustained by running trains at a greater rate of speed than is permitted by the ordinance of any city or town.
Thus it appears that in that State there is a State statute which makes a violation of a city speed ordinance a cause of civil action in favor of the party injured. There was no other discussion or decision of the question in that case.
Hayes v. Railroad (111 U. S. 228), was an action for damages for failure to fence the railroad tracks as required by the city ordinance. The court pointed out that there was a general law of the State which conferred upon cities the power to require railroads to fence their tracks, and made a company failing to comply with the city ordinance liable for all damages to-cattle and horses, “in like manner and extent as under the general laws of this State, relative to the fencing of railroads,” and also a State statute which requires a railroad to keep a flagman a.t street crossings, and to provide protection against injury to persons and prop*168erty. In discussing the question whether an action for a violation of such regulations would lie in favor of a third person, the Supreme Court of the United States referred to Atkinson v. Newcastle Waterworks Co. (L. R. 2 Exch. Div. 441), which qualifies the broad doctrine stated by Lord Campbell in Couch v. Steel (3 E. & B. 402) and accepts the limited doctrine announced by Lord Cairns, “That whether such an action can be maintained must depend on the ‘purview of the legislature in the particular statute, and the language which they have here employed,’ ” and held that, under the State statute, and the city ordinance passed pursuant to legislative authority, such a right of action would lie in that case.
It is manifest that that case cannot be taken as affording support to the Jackson case, or the majority-opinion herein, for there is no such State statute in this State as there is in Illinois, and under the decisions in this State, the Legislature cannot delegate its legislative power to a city. In this connection, it is proper to note that in Couch v. Steel (3 E. & B. 402) Lord Campbell held, that an act of parliament, which made it a duty of a ship-owner to keep a proper supply of medicine on hand, and provided a specific punishment for the breach of that duty, afforded, also, a private right of action for such breach.'
Atkinson v. Newcastle Waterworks Co. (L. R. 2 Exch. Div. 441), was an action for damages against the waterworks company for a breach of its statutory duty to keep its pipes, at all times, charged with water, at a sufficient pressure to extinguish fire, in consequence of which the plaintiff’s premises were burned. The statute prescribed a penalty for a violation of the duty imposed, and it was held that its liability was limited to that penalty, and that the statute gave no right of action to the plaintiff, and the rule laid down by Lord Campbell in Couch v. Steel was questioned, distinguished and declared to be no authority in that case.
*169Thorpe v. Railroad (27 Vt. 140), was an action, for damages, for killing stock, based upon a violation of a State statute requiring the railroad to have cattle guards at all crossings. The right of the Legislature to enact such a law was discussed, but there was no such ordinance involved in the case, and no discussion as to the power of the municipality to enact an ordinance that would confer a right of private action.
Railroad v. Young (81 Ga. 397), as far as can be gleaned from the report, was a common law action of negligence. On the trial the plaintiff introduced a city ordinance requiring the railroad to keep a flagman at certain crossings and making it his duty to prevent the running of the trains at a greater rate of speed than four miles an hour, and to protect .the lives of persons passing along the street. The ordinance provided, also, a punishment for the engineer to run at a greater rate of speed.
There was also a State statute which made it the duty of the railroad, when approaching a street crossing, to ring the bell, and to check the' speed of the train, so as to be able to stop the same if there should be anything on the crossing. The court treated the State statute and the city ordinance as of equal dignity, and said they were both referable to the general police powers, but added “that the style of the charge touching the city ordinance was too absolute and unconditional, in treating them as law, without any reference to the jury of the question of fact as to whether there were such ordinances before them, and perhaps as to whether they were reasonable.”
Thus it appears that the power of a city to enact such ordinances was assumed, but that the violation of them would not be treated as negligence per se, and that the defendant might show that such ordinances were unreasonable. This case is of little value in this State.
Railroad v. Curtis (87 Ga. 416), was an action for *170damages arising ont of a violation of an ordinance which prohibited the train, engine or cars to obstruct any street longer than five minutes. The plaintiff’s horse became ’ frightened at the engine, and was injured. The trial court instructed that a violation of the ordinance would be negligence as a matter of law, and the Supreme Court said such a violation was negligence per se. But the question was not further discussed either upon principle or precedent.
In Railroad v. Stebbing (62 Md. 504), the trial court instructed the jury that a violation of a municipal speed ordinance was negligence per se. The Supreme Court held this instruction to be error, and without discussing the power of a city to enact such ordinances, said, ‘ ‘ This ordinance is general, and is for the protection of the public generally; but the neglect or disregard of the general duty thereby imposed for the protection of every one, can never become the foundation of a mere personal right of action, until the individual complaining is shown to have beenplaced in position that gave him particular occasion and right to insist upon the performance of the duty to himself personally. The duty being due to the public,.composed of individual persons, each person specially injured by the breach of duty thus imposed, becomes entitled to compensation for such injury. But he must have been in position to entitle him to the protection that the ordinance was designed to afford, and he must show how and under what circumstances the duty arose to bim personally, and how it was violated by the negligence of the defendant to his injury.” And it was held that the instruction given for the plaintiff was a mere abstraction, and therefore well calculated to mislead; in that, it did not require the jury to find any causal connection between the negligent act in running the train in violation of the ordinance, and the injury complained of. And the court said, “In the abstract form in which the instruction was given, and from the terms *171employed, the jury may have inferred that the defendant was liable merely because of the fact that the train was running at forbidden speed, and that such liability was wholly irrespective of any contributory negligence on the part of the plaintiff.” And, accordingly, the judgment was reversed for this error. ■
Correll v. Railroad (38 Ia. 120), was an action for damages, resulting from a violation of a municipal speed ordinance. It was distinctly stated that “the power of the city of Yinton to pass the ordinance is not questioned.” The court held that there was no difference between a State statute and a municipal ordinance, and that a violation off the duty imposed by either áfforded a right of civil action.
In Railroad v. Hensil (70 Ind. 569), it was said: “The force and effect of a city ordinance regulating the running and management of railroad, trains, within the limits of the city, upon a civil action against a railroad company, like the case before us, is a question upon which the authorities are not entirely in accord. But the weight of authority is overwhelmingly to the effect that the failure to perform any duty imposed, either by a statute or an ordinance, is negligence per se, and entitles the injured party to recover, provided the failure was a proximate cause of the injury.” And Thompson on Negligence, 419 and 1232, and Shearman and Redfield on Negligence, sections 484-5, were cited as authority. The judgment in that case was reversed because of the failure to show that the violation of the< ordinance was the proximate cause of the injury.
Railroad v. Reidy (66 Ill. 43), was an action under the State statute which made railroad companies liable for all damages done to stock in any incorporated city where the train was running at a greater rate of speed than the ordinance of the city permitted. As this depended upon the-State law, and not upon the validity of a city ordinance, it might be unnecessary to say more of the case,'but it is noteworthy that such a viola,*172tion is treated as only prima facie evidence of negligence, and not as negligence per se.
Mason v. Shawneetown (77 Ill. 533), involved the right of a city to pass an ordinance authorizing the issuance of bonds for the purpose of constructing a levee, and hence is not applicable to the case at bar. It may be noted, however, that the doctrine is laid down in Illinois, that where a city is authorized to pass an ordinance, such ordinance has the same force and effect as a law passed by the Legislature. In other words, the doctrine does not seem to obtain in that State that legislative powers can be delegated to a city.
In Railroad v. Voelker (129 Ill. 540), a recovery was asked for the violation of the statutory duty to ring the bell-and sound the whistle, and for a violation of the city speed ordinance, and for common law negligence. The power of a city to enact such ordinances was not discussed, but the case turned upon the contributory negligence of plaintiff. Aside from this, as hereinbefore noted, there is a State statute in Illinois which authorizes a private right of action where a municipal speed ordinance or police regulation governing the run- , ning of the railroad trains, has been violated.
Piper v. Railroad (46 N. W. 165), was an action for damages based upon the violation of a State statute regulating the speed of railway trains in cities, and therefore throws no light upon the question here involved, and that question was not discussed in that case.
Railroad v. Terry (42 Tex. 451), was an action for damages for killing the plaintiff’s mare and colt, in consequence of running at a greater rate of speed than was permitted by the city ordinance. The right of the city to enact such an ordinance was not raised, discussed or decided in that case.
In Wright v. Railroad (86 Mass. l. c. 290), it was held that in a common law action for negligence, a city ordinance regulating the speed of a street car might be introduced in evidence as bearing upon the question of *173the use of due care by the defendant. But the power of a city to enact such an ordinance was not discussed, and the ordinance was not counted upon in that case.
Bott v. Pratt (33 Minn. 323), was an action for damages, caused to the plaintiff by the defendant leaving his horse unhitched in the street, in violation of a city ordinance. The court treated the ordinance as of the same nature and dignity as a State statute, and held that, “The analogy between, statutes and' the ordinances of cities is, of course, not to be extended beyond the proper limits of municipal jurisdiction. But in matters properly of local cognizance it is necessary and eminently proper that such powers should be committed to the municipality, to be exercised through ordinances which shall be subordinate to and consistent with the general laws, or in proper cases be authorized to take their place.” And, therefore, held that a municipal regulation is as binding within the city as any statute or law of the State. And that the Legislature may authorize the city to pass such a law, or may pass it itself.
This case, also, draws the saíne distinction between ordinances regulating the speed of railroads or other police regulations, and ordinances requiring the owner of the abutting- property to remove ice from the sidewalk, as is drawn in the Jackson case.
It is only necessary to say that no such legislative powers can in this State be delegated to a city.
Siemers v. Eisen (54 Cal. 418),-was an action for damages caused by the defendant leaving his horse unhitched on the street, in consequence of which, the horse ran away and injured the plaintiff. A city ordinance forbidding the leaving of animals unhitched on the streets was offered in evidence, although the action was not based upon the ordinance. The court discussed the question of the liability of an individual to another for a failure to perform a duty imposed upon him by statute, or through legal authority, and held such a viola*174tion to be negligence in the eye of the law, but the power of a city to enact snch an ordinance was not discussed or decided, much less the power of a city, by ordinance, to make evidence of a common or statutory liability.
The foregoing analysis of the cases cited in support of the doctrine laid down in the Jackson case, and in the case at bar, fully demonstrates that such cases arose in States where it is held competent for the legislature to delegate legislative powers to municipalities, or where there was a State' statute expressly conferring a right of action upon one citizen against another for' a violation of any municipal regulation, or where it was assumed, without discussion, that a private right of action could arise from a violation of a municipal police regulation equally as well as where such right of action was expressly conferred by State statute or by the common law.
Therefore,, the prior decisions in this State, and in other jurisdictions, do not accurately, logically and scientifically discuss or decide the questions here involved.
The text-writers have attempted to state a safe .legal principle, upon which to rest the decisions on this subject. Thompson on Negligence (2 Ed.), vol. 1, sec. 12, in discussing this■ question says: “In considering this question, it is further to be kept in mind that there are many statutes and municipal ordinances which forbid the doing of acts, the violation of which does not necessarily give any right of action in favor of private individuals; the offense being against the public, to be redressed in the one case in a criminal prosecution, or in an action brought in behalf of the State by the Attorney-General, and in the other by a prosecution in a municipal court. And it may be stated as a general proposition — though there may be difficulty in some cases in applying it — that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual, *175unless the statute or ordinance was designed to prevent such injuries as that suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and surmises.” The learned author then points out that, although the statute or ordinance may prohibit the doing of an act, to the end of promoting the public safety, such legislation is not exclusive, but that it may be simply declaratory of the common law, and that it is only exclusive where the legislature creates the right or imposes the duty, and gives a remedy, in which event, that remedy alone must be pursued.
The same author in section 4510, vol. 4, cited the rule laid down by this court in Bluedorn v. Railroad (108 Mo. 439), that the violation of a municipal speed ordinance is negligence per se, but does not undertake to discuss the question on legal principles.
As hereinbefore pointed out, Dillon on Municipal Corporation, sec. 713, and Redfield on Railways, page 578, discuss only the power of a city to enact a police speed ordinance, but do not discuss the question here involved.
Shearman and Redfield on Negligence (5 Ed.), sec. 13, draws no distinction between a violation of a State statute and a municipal regulation, and advocates the doctrine that they afford a right of action to the citizen injured against the offender, whether the statute or ordinance gives such a right, or simply imposes a penalty by way of fine for its violation. But points out that while this rule obtains on Georgia, Indiana, Missouri, Wisconsin, Minnesota and Colorada, and such violation is in these States treated as negligence per se, it is held in New York and Pennsylvania that such violation of a statute or ordinance is not negligence, as a matter of common law, but, “only some evidence of negligence,” and concludes that it is wrong to instruct the jury that mere proof of such negligence entitles the plaintiff to recover; or in other words, that it is not negligence *176per s'e, but only prima facie evidence. The author, however, does not discuss the power of a city to create such a private right of action any more, than to say that if the statute or city ordinance was established for the benefit of private persons, it would afford such a right of action.
Cooley on Torts (2 Ed.), p. 784, is frequently misquoted as supporting the doctrine stated in the Jackson case and in the case at bar. An examination of the discussion by that author, beginning on page 780, and extending to page 790, discloses, however, that he was spealdng of a violation of a State law and not of a city ordinance, and that he did not consider the question of the power of a city to create such a private right of action under its police power. The language employed by the author, which has been misapplied is, “If the duty imposed is obviously meant to be a duty to the public, and also to individuals, and thepenalty is made payable to the State or to an informer, the right of an individual injured to maintain an action on the case for a breach of the duty owing to him, will be unquestionable. ’ ’ This language was employed in the paragraph in which it is stated that, “Where the statute imposes a new duty, where none exists before, and gives a specific remedy for its violation, the presumption is that this remedy was meant to be exclusive, and the party complaining of the breach is confined to it. ’ ’
The author also points out that if a remedy exists at common law, and a new remedy is given by statute, and there are no negative words in the statute, indicating that the new remedy is to be exclusive, the presumption is that it was intended to be cumulative', and the party injured may proceed either under the common law or under the statute.
The foregoing review of the cases in this State and of the adjudications in other States, clearly shows that the distinction made in the Jackson case, between the right of one person to maintain a civil action against *177another for a violation of an ordinance requiring the removal of ice from the sidewalk, and for the violation of a speed ordinance, or such an ordinance as that under consideration in this case, cannot he logically maintained upon legal principles. The power of a city to enact both classes of such ordinances arises out of the police power of the city alone. But it is said in the Jackson case that inasmuch as it is the duty of a city to keep its sidewalks in a reasonably safe condition for the public to travel thereon, and inasmuch as the city cannot shift this responsibility to the abutting owner, or to anyone else, therefore, there is a difference between a violation of an ordinance requiring the abutting owner to remove ice, and an ordinary police speed ordinance, in that, in the former case no right of action is conferred upon third persons, while in the latter case, such a right is conferred.
It is manifest to my mind that the duty of the city is the same in both instances, and that the purpose of the ordinance is the same in both instances.
Permitting the ice to remain on the sidewalk is a nuisance on the public highway. So also permitting a railroad or a citizen to travel at such a rate of speed on the highway as to endanger the safety of other persons thereon, is a nuisance. The liability of the city is the same in both cases. Its liability arises solely from its failure to remove a nuisance from the highway, or from its permitting citizens to create a nuisance on the highway. In the one instance, the nuisance is created by an apt of G-od; in the other instance, it is created by the citizen. And the liability of the city arises solely out of its obligation to keep its highways free of nuisances,., The city cannot shift this responsibility in either case, and can shift it as much in the one case as in the other. It has frequently been held, that, under its police power, the city can compel the abutting owner to remove the ice and snow from *178the sidewalk; so, also, the city can prevent railroad trains from running on its highways, or from so running as to be a nuisance. The underlying principle, in both instances, is the preservation of the safety of the citizens in using the highway.
I am, therefore, clearly of the opinion, that there can be no accurate, logical or scientific distinction drawn between such ordinances, and therefore that this court must either recede from its opinion in the Norton case, or from the opinion in the Jackson case.
This brings me to a consideration of the other line of cases above referred to, which have run along through the reports of this State at the same time with the cases hereinbefore analyzed.
This line of cases consists of Fath v. Railroad (105 Mo. 545); Senn v. Railroad (108 Mo. 152); Moran v. Pullman Pal. Car Co. (134 Mo. 641); Sanders v. Railroad (147 Mo. 411); Murphy v. Railroad (153 Mo. 252); Holwerson v. Railroad (157 Mo. 245).
And these decisions, in this State, are in harmony with the decisions in other jurisdictions. [Heeney v. Sprague (11 R. I. 456); Railroad v. Ervin (89 Pa. St. 71); Kirby v. Boylston Ass’n (14 Cray 249); Flynn v. Canton Co. (40 Md. 312); Jenks v. Williams (115 Mass. 217); Vandyke v. Cincinnati (1 Disney 532) ; Knupfle v. Knickerbocker Ice Co. (84 N. Y. 488); Moore v. Cadsden (93 N. Y. 12); Connor v. Electric Traction Co. (173 Pa. St. 602); Railroad v. Dalton (43 S. W. (Ky.) 431); Railroad v. Wood (52 S. W. (Ky.) 796); Atkinson v. Newcastle, etc., Co. (L. R. 2 Exch. Div. 441); Taylor v. Railroad (45 Mich. 74).
In Fath v. Railroad, supra, the question of the power of a city to create “a civil duty, enforceable at common law” was first discussed scientifically in this State, and it was there said, that although the subject had been incidentally touched upon in several instances, the validity of the ordinance had never been adjudicated by this court. And it was there pointed out *179that, upon principle and precedent, such a duty could not be created by a mere police regulation, but that tbe city had power, under its police powers, to create an obligation on tbe part of its citizens to perform certain of tbe duties wbicb rested upon tbe city, and to enforce tbe performance of such duties by fines, forfeitures and imprisonment, but could not create a right of civil action among citizens inter sese for tbe violation of an ordinance, and that it was only in cases where tbe defendant bad made a contract with tbe city, for a valuable consideration, to be bound by sucb regulations, that a civil liability could arise. It was pointed out, exhaustively, that sucb was tbe weight of authority in England and America.
Tbe subsequent cases, above referred to, in this State, have followed and amplified tbe doctrine there laid down.
But it was said in tbe Jackson case, and is said in tbe majority opinion in this case, that tbe discussion of tbe subject in tbe Path case was obiter, because in that case it appeared that tbe defendant' bad accepted, or agreed to be bound by, tbe provisions of tbe ordinance. It is also said in tbe Jackson case, and in tbe majority opinion in this case, that tbe Rhode Island, Pennsylvania, Maryland and Massachusetts cases, above cited, are not decisive of tbe question here involved, and belong to tbe same class of cases to wbicb Norton v. St. Louis, supra, belongs, and that they were all cases of violation of a city ordinance requiring tbe removal of ice and snow from tbe sidewalk. As hereinbefore pointed out, if tbe discussion of tbe subject in Path v. Railroad was obiter, tbe discussion of tbe subject in this case is likewise obiter, because, in both instances, tbe defendant bad accepted, or agreed to be bound by, tbe provisions of tbe ordinance.
But whatever may be said on tbe question of obiter, tbe fact remains that tbe legal principles and *180precedents referred to, and set ont in those cases, must be considered in the final settlement of this case.
Those principles have been fully stated in the Path case, and the cases before cited which follow it, so that an exhaustive review of those cases is not here necessary. In view, however, of what was said in the Jackson case, and is said in this case, as to the adjudications in other jurisdictions upon this subject, it is necessary to briefly analyze these decisions.
Taylor v. Railroad (45 Mich.) 74), was an action for damages against an abutting owner, arising out of a violation of a city ordinance requiring such owner to remove ice and snow from the sidewalk. The opinion was written by Judge Cooley, and he said, that the plaintiff claimed that the duty imposed was for the benefit of persons using the sidewalk, and enured to each citizen injured, and referred to the fact that the plaintiff relied upon the English case of Couch v. Steel (3 E. & B. 402). The learned judge, however, followed the later English case of Atkinson v. Waterworks Co. (L. R. 2 Exch. Div. 441), and said that, in order to entitle the plaintiff to recover, it must appear that the duty imposed was to individuals rather than to the whole public of the city, for if it was only a public duty, “it cannot be pretended that a private action can be maintained for a breach thereof. A breach of public duty must be punished in some form of public prosecution, and not by way of individual recovery of damages.” It was then pointed out, that the duty enjoined was to the whole public, and not to individuals, and it was said, “If the duty to keep sidewalks free from obstructions is a duty to individual travelers desiring to use it, it is as much broken when the walk is wholly obstructed as when it is capable of use but is dangerous, and an action will as much lie by one who is compelled to go around an obstruction, as one who slips and falls in a dangerous place. Moreover, as the lot-owner is required to keep the walk free from all nuisances, an *181individual traveler, who can maintain the proposition that this is a duty to him, must he entitled to bring suit whenever the existence of a nuisance diminishes either the comfort or the safety of the use of the walk by him. This view of the obligation of the lot-owner would add greatly to his common-law liabilities, and it is not easy to draw the line which should definitely limit and confine his liabilities.” It was accordingly held, that only a public duty was enjoined, and that a right of private action could not arise out of a violation of the duty.
In Knupfle v. Knickerbocker Ice Co. (84 N. Y. 488), it was pointed out that in the earlier New York cases it had been held that a violation of a city speed ordinance, was negligence per se, and afforded a right of action to the person injured against the person violating the ordinance, but that the later cases in that State had overruled that doctrine, and held that, the violation of such an ordinance is “some evidence of negligence, ’ ’ and therefore such a violation of such an ordinance did not afford a right of civil action.
Moore v. Gadsden (93 N. Y. 12), was an action for damages against an abutting owner for failure to remove snow and ice from the sidewalk, as required by the city ordinance. The court said, “The ordinance of the city is a police regulation, but is not. of itself sufficient to give a cause of action to the party injured by the act in violation of its terms.”
Connor v. Electric Traction Co. (173 Pa. St. 602), was an action for damages arising out of a violation of a city ordinance regulating the running of street cars. It was contended that a violation of the ordinance was negligence, per se, but the Supreme Court said, “Failure to comply with the provisions of such an ordinance, is not necessarily negligence per se; it is merely evidence of negligence.”
Jenks v. Williams (115 Mass. 217), was a bill in equity to enjoin the owner from constructing or main*182taining bow-windows, or other projections into the street, contrary to the city ordinance; in consequence of which the plaintiff’s adjoining property was diminished in value. It was held that the ordinance was intended for the benefit of the public, and conferred no distinct rights on individual citizens or owners of property, and that a private action would not lie for the violation of the ordinance.
Heeney v. Sprague (11 R. I. 456), was an action for damages, arising out of the violation of a municipal ordinance requiring the abutting owner to remove snow and ice from the sidewalk.' The subject is discussed with such clearness and force, by Chief Justice Dtjbeee, that the following excerpt therefrom is justified. He said: “The plaintiffs base their right to maintain this action on the authority of cases which, they claim, hold that where a person is required by statute to do an act and neglects to do it, any person specially injured by the neglect is entitled to recover his damages in an action on the case, if no other remedy is given, and that, too, even when the statute imposes a penalty for its violation. [Couch v. Steel (3 E. & B. 402, 411); Gen. Steam Nav. Co. v. Morrison (13 C. B. N. S. 581, 594); Caswell v. Worth (5 E. & B. 849); Atkinson v. Newcastle, etc. Co. (L. R. 2 Exch. Div. 441); Aldrich v. Howard (7 R. I.199).] It has been doubted, however, whether the cases go so far as is claimed. This doubt is expressed in Flynn v. Canton Co. of Baltimore (40 Md. 312), and in that case the attempt is made to confine the liability to cases in which the neglected duty is prescribed for the benefit of particular persons, or of a particular class of persons, or in consideration of some emolument or privilege conferred, or provision made, for its performance, and to show that it does not extend to a duty imposed withput consideration, and for the benefit of the public at large — the only liability for the neglect of such a duty being the penalty prescribed. And this *183view is supported by strong, if not irrefragable authority. [Hickok v. Trustees of Plattsburgh (16 N. Y., note on p. 161); Eastman v. Meredith (36 N. H. 284); Bigelow v. Inhabitants of Randolph (14 Gray 541); Aldrich v. Tripp (ante, p. 141).] But even supposing the liability is not subject to any such qualification, then, inasmuch as the neglected duty was not enjoined by statute but by a municipal ordinance, the question arises whether in this respect an ordinance is as effectual as a statute. There are many things forbidden by ordinance which are nuisances or torts, and actionable as such at common law. The question does not relate to them. The defendant has not done anything injurious to others which she was forbidden to do; she has simply left undone something- beneficial to others which she was required to do under a penalty in case of default. The thing required was not obligatory upon her at common law. It was a duty newly created by ordinance, which, but for the ordinance, she might have omitted with entire impunity. The question is, whether a person neglecting such a duty is subject, not only to the penalty prescribed, but also to a civil action in favor of any person specially injured by the neglect. If the liability exists, it is quite a formidable one. A fall on the ice is often serious in its consequences. The damages resulting from it may .amount to thousands of dollars. . And under the ordinance the liability, if it exists, may be visited either upon the owner or the occupant of the abutting premises, or upon any person having the care of them. And further, if the liability exists under the ordinance in question, it exists, pari ratione, under every ordinance prescribing a similar duty. To hold that it exists is therefore to recognize, outside the Legislature, a legislative power as between individuals which, though indirectly exercised, is nevertheless, in a high degree, delicate and important. This we ought not to do, unless upon principle or precedent our duty *184to do it is clear; for we do not suppose that the creation of new civil liabilities between individuals was any part of the object for which the power to enact' ordinances was granted.
“In some of the cases the origin of the liability upon a statutory duty is ascribed to the statute of Westminster II., cap. 50; 2 Inst. 485, 486. See Couch v. Steel (3 E. & B. 402, 411); Aldrich v. Howard (7 R. I. 199, 214). This chapter, however, relates only to statutes; it does not extend to municipal ordinances. But even if the liability has its origin in the common law, we do not find that it has ever been held to extend to a neglect of duty enjoined simply by a municipal ordinance, and we think there are reasons, apparent from what we have already said, why it should not extend to it. The power to enact ordinances is granted for particular local purposes. It includes or is coupled with a power to prescribe limited punishments by fine, penalty, or imprisonment for disobedience. No power is given to annex any civil liability. The power, being delegated, should be strictly construed. It would seem, therefore, that the mere neglect of a duty prescribed in the exercise of such a power should not be held to create, as a legal consequence, a liability which, within the power, could not be directly imposed.”
It will be observed that the court discussed the whole subject of the power of a city to enact such police regulations and of the right of citizens to maintain an action for the violation thereof. No distinction is made, in the discussion, between municipal ordinances requiring the abutting owner to remove ice and snow from the sidewalk and municipal ordinances regulating the use of streets or the running of trains, or the driving of vehicles on the streets. And the,difference is pointed out between ordinances which are intended for the benefit of the whole community, or of all persons composing the community, and ordinances which are passed for the benefit of particular persons, or a *185particular class of persons, or in consideration of some emolument or privilege conferred. It is obvious that speed ordinances, or ordinances like tbe Vigilant Watch Ordinance, are passed as much for the benefit of the whole public, as are ordinances for the removal of ice and snow from the sidewalk, and that neither class of ordinances can accurately be said to have been passed for the benefit of particular persons or classes of persons.
Railroad v. Ervin (89 Pa. St. 71), was an action for damages growing out of a failure of the railroad' company to obey a municipal ordinance which required it to place a cap-log eight inches high on the side of the wharf or passageway, in consequence of which, the plaintiff’s horse and cart fell into the-river and were lost. The court held that no right of action was conferred in favor of the plaintiff by the ordinance, and that as no right of action, at common law, existed, the plaintiff was not entitled to recover. Speaking of such ordinances the court said, “Would disobedience of this regulation, of itself, subject the company to such charge and action? ' This question would seem almost to answer itself; for if it be affirmed, then may civil duties and civil remedies be given or taken away by ordinances; a power as yet quite beyond the reach of municipal legislation. The national or State Legislature may do this, for it is the supreme power, and as such can make that immoral which was before indifferent, and that neglect which was before prudence, but the city of Philadelphia has no such power. Its ordinances are but police regulations enforceable by penalties, recoverable by actions of debt or otherwise as may be prescribed, but if not so enforced, they come to nothing. An ordinance may forbid the maintenance, by my neighbor, of a cess-pool upon his premises, and it may, by penalty, compel him to abate it, but whether it does so or not, I may, if I am damaged thereby, have my common law action against him, but if I am not dam*186aged I am without remedy; in this the ordinance neither helps nor hinders. This is a matter well settled by Spencer, J., in the case of Vandyke v. The City of Cincinnati (1 Disney’s Rep. 532), thus: ‘I conclude, then, that the ordinance imposed upon Harbeson a public duty alone, which can only be enforced by a penalty prescribed, and non-performance of which does not subject him to a civil action at the suit of a person injured. ’ In arriving at this conclusion the learned justice uses the argument I have thought proper to gdopt; that is, an ordinance cannot create a civil duty enforceable at common law. For if a city council has power so to do — if it has the power to create such obligation, it must also have the power to restrict it, in other words, to prescribe the sole consequences arising therefrom, hut it will, we apprehend, be conceded that a power, like the one here indicated, is wholly beyond the provisions of such a body. There are indeed cases where such ordinances have been received in evidence in common law actions for negligence, but they are generally such as enter into the case itself, or enforce a common law duty.”
The case of Vandyke v. Cincinnati (1 Disney 532), referred to in the case last analyzed, discusses the question here involved' and holds that a civil right of action cannot arise out of such an ordinance, saying, “The effect of this would be to invest a municipal corporation with the highest attribute of sovereignty, that of creating, limiting, and directing the most important rights and interests of individuals in the community, and dictating their relation to each other; a power that no legislature, under our constitution, can depute to, or confer upon another. I conclude, then, that the ordinance imposed upon Harbeson a duty to the public alone, which can only be enforced by the penalty prescribed; and the non-performance of which does not subject him to a civil action, at the suit of a private person. ’ ’
*187Kirby v. Boylston Market Co. (80 Mass. 249), was an action for damages for personal injury received by tbe plaintiff from falling on tbe sidewalk in front of the plaintiff’s market house in Boston. It was held that individuals, who sustain injuries from nuisances created or obstructions unlawfully placed by another person In the public highway, may maintain an action against him to recover compensation therefor, independent of any statute or ordinance, but that an abutting owner cannot be made liable to a personal action by the party injured because of the failure to obey a municipal ordinance requiring such abutting owner to remove ice and snow from the sidewallk; and that the person violating such ordinance is subject to presecution under the ordinance alone.
Railroad v. Dalton (43 S. W. (Ky.) 431), was an action for damages based, partly, upon a violation of a municipal speed ordinance. The court reviewed the prior decisions in that State, which held that a violation of such a speed ordinance could not afford á civil right of action, and which further held, that such ordinances were not competent evidence of common-law negligence, and also .reviewed some of the decisions in other States, and said: “Without attempting to harmonize these apparently conflicting authorities, the true rule seems to us to be that announced by the Superior Court. There can be no recovery of damages in this State against railroad companies in cases of this kind, except because of neligence. This is a question of fact to be established by proof. Negligence cannot be fastened on the carrier by some local police regulation. Punishment may be imposed for violation of such ordinances, but in civil suits there are well-defined methods of establishing the facts which authorize a recovery, and we cannot depart from this method without doing violence to well-settled principles.” And speaking of such ordinances being used as evidence of common law negligence, the court said, “It *188would seem clear that the introduction of the ordinance could serve no purpose save almost necessarily to mislead the jury. ” .
Railroad v. Wood (52 S. W. (Ky.) 796), was an action for damages for the killing of plaintiff’s horses. The action was based upon a violation of a city ordinance limiting the speed of the train. The court said, “In our opinion, the court erred in admitting the ordinance in evidence. It was essential, in order to recover, that the negligence of the appellant be established independent of the fact that the ordinance prohibited the running of trains through the streets of the city at a greater rate of speed than twelve miles an hour. This is no longer an open question in Kentucky, as it was adjudged in Railroad v. Dalton (43 S. W. (Ky.) 431), that such an ordinance is not admissible as evidence upon the trial of a case like the one under consideration, and is misleading and prejudicial to the rights of the defendant. To the same effect is Dolfinger v. Fishback (12 Bush 474).”
Flynn v. Canton Co. (40 Md. 312), was an action for damages growing out of a violation of a municipal ordinance requiring the abutting owner to remove ice from the sidewalk. The court reviewed the former decisions in that State, and also reviewed at length the cases of Couch v. Steel (3 E. B. 402), and Atkinson v. Waterworks Co. (L. R. 2 Exch. Div. 441), and pointed out the difference between a law which is enacted for the benefit of particular individuals or a particular class of individuals, e. g., the act of parliament requiring shipowners to furnish a sufficient supply of medicine, which was involved in Couch v. Steel, supra, and a law that was enacted for the benefit of the whole community, such as was involved in Atkinson v. Waterworks Co., supra, and held that a civil right of action enures to the individual damaged by the violation of the first class, but that such a right of action does not enure to any individual in the second class, and the *189violation of such, a law can only he punishable by fine and penalty.
I believe that this is the true distinction as to State laws, and I further believe that, under the Constitution and decisions in this State, the power to enact such laws is vested solely in the Legislature, and that the delegation to a municipality of a police power does not confer upon it the right to create a right of civil action, but that this right is limited to forbidding such acts or offenses, and to punishing them by fine, forfeiture and imprisonment. This view is clearly within the rule laid down by Lord Cairns in Atkinson v. Waterworks Co., supra, where he said, “But I must venture, with great respect to the learned judges who decided that case, and particularly to Lord Campbell, to express grave doubts whether the authorities cited by Lord Campbell justify the broad general proposition that appears to have been there laid down — that, where a statutory duty is created, any person, who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed. I cannot but think that that must, to a great extent, depend on the purview of the Legislature in the particular statute, and the language which they have there employed. ’ ’
This doctrine, read in connection with the doctrine which obtains in this State, that the legislative power cannot be delegated to a municipality, in my judgment, solves the question under discussion here.
If a violation of mere police regulations of a city can confer a right of action among citizens inter sese, the result would be that a citizen in a city would have' a right of action against another citizen of the city, while a resident of any part of the State outside of such city would not have a right of action against another resident of such part of the State for the neglect *190of a' duty that resulted in the same character of injury to the other person.
This would make the láw different in a .city from what it is in the country. The law would not be uniform throughout the State, and hence, under the decision in Badgley v. St. Louis, supra, such city law would be unconstitutional.
Again, if a city has the power to create such a right of action among citizens, it has the right to prescribe how much the person injured by its violation shall' recover from the offender. Under such a power St. Louis .might provide for a recovery of ten thousand dollars, Kansas City for a recovery of five thousand dollars, and Cedar City for. a recovery of twenty-five thousand dollars. So that the law would be different in the several cities of the State, and outside of the cities the resident of the country would have no such law for his protection. Laws cannot be so localized or so differ mfc in the different parts of the State.
III.
If the city has such a power, under its charter, has. it enacted any such law, or has it simply enacted police regulations, and prescribed penalties for the violation thereof, and are such penalties the sole remedy afforded by this regulation, and have the courts the right to punish the offender in any other manner than is prescribed by such regulation?
The Vigilant Watch Ordinance here involved is one of the twelve provisions contained in section 1760, article 6, chapter 23, of the municipal code of St. Louis. Section 1772 of the same article provides that any person, corporation, company, etc., violating, or failing to comply with, any of the provisions of that article, shall be deemed guilty of a misdemeanor, and upon conviction thereof,, shall be fined not less than $5, nor more than $50(h
Bearing in mind the provisions of paragraph 14 *191of section 26 of article 3 of the city charter, which limit the right of the city to enforce the police regulations it may enact, by fines and penalties, not exceeding $500, and by forfeitures, not exceeding $1,000, and bearing in mind the penalty prescribed by section 1772, aforesaid, the question here involved must be solved. It is perfectly obvious that in enacting the Vigilant Watch Ordinance, or regulation, the municipal assembly was proceeding under the power conferred by the charter aforesaid, and that it was simply attempting to pass a general police regulation that would regulate the duty of all persons, corporations and companies-, with respect to the whole body of citizens, and was not undertaking to pass any ordinance that would enure to the benefit of any particular individual, or any particular class of individuals. In other words, the city was exercising its delegated police power, and did not, and did not attempt to, create any right of civil action betweén citizens inter sese, but intended that any person violating any of the police regulations contemplated by said article, should be guilty of a misde-' meanor, and upon conviction, be fined not less than $5 nor more than $500.
In my judgment no other penalty or liability can attach to, or arise out of, a violation of such ordinance. From time immemorial the general and better rule of law has been that where a new duty is imposed, and the act imposing it prescribes a specific punishment for its violation, no other punishment can be inflicted therefor, and the courts have no power to enlarge, alter or change the punishment prescribed.
King v. Marriott (4 Modern Rep. 144), was an indictment against the defendant for keeping an alehouse without a license. The statute prescribed that no person should keep an alehouse, but such who shall be admitted thereto, under a penalty of three days imprisonment, without bail, and not to be discharged without giving a recognizance with two sureties to do so no *192more. It was objected that an indictment would not lie, because the offense was not a common law offense, but a new duty imposed by statute, and that the statute prescribed the offense should be prosecuted by information, and that an indictment was not provided by the statute. It was there said: “Now, where a law makes an offense, and points out the method of prosecution, it must be punished according to such method, and not otherwise;” and accordingly the indictment was quashed. The same ruling was made in Stephens v. Watson (1 Salk. 45); Rex v. Pensax (1 Bar. K. B. 127); and Rex v. Wright (1 Burr. 544). In Hartley v. Hooker (Cowper 524), it was held that, “Wherever a new offense is created by statute, and a special jurisdiction out of the course of common law is prescribed, that special jurisdiction must be strictly followed, or all the proceedings will be a nullity. ’’
Sutherland on Statutory Construction, sec. 208, lays down the rule that, “When a law imposes a punishment which acts upon the offender alone, and not as a reparation to the party injured, and where it is entirely within the discretion of the law-giver, it will not be presumed that he intended that it should extend further than, is expressed; and humanity would require that it should be so limited.”
Sedgwick ?s Statutory and Constitutional Law (2 Ed.), p. 341, says, “Where a precise remedy for the violation of a right is provided by statute, it often becomes a matter of interest to know whether the statutory remedy is the only one that can be had, or whether it is to be regarded as merely cumulative, the party aggrieved having also a right to resort to his redress for the injury sustained, at common law, or independent of the statute. In regard to this we have already noticed the rule that where a statute does not vest a right in the person, but only prohibits the doing of some act under a penalty, in such a case the party violating the statute is liable to the penalty only; but where a *193right of property is vested by virtue of the statute, it may be vindicated by the common law, unless the statute confines the remedy to the penalty. ’ ’
The same author, at page 343, says, “But on the other hand, it is a rule of great importance, and frequently acted upon, that where by a statute a new right is given and a specific remedy provided for a new power and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by statute.”
Endlich on Interpretation of Statutes, sec. 465, says, “If the statute which creates the obligation, whether public or private, provides in .the same section or passage a specific means of procedure for enforcing it, no other course than that provided for can be resorted to for that purpose.”
Smith on the Modern Law of Municipal Corporations, vol. 1, sec. 547, thus states the rule: “If the manner of enforcing ordinances is prescribed by statute or charter it is a cardinal rule that no other method can be resorted to.” . And in support of the text the author cites: Eubanks v. President (36 Ill. 177); King v. President (31 Ill. 305); Israel v. President (2 Ill. 290); Weeks v. Forman (16 N. J. L. 237); Williamson v. Commonwealth (4 B. Mon. (Ky.) 146); State v. Zeigler (32 N. J. L. 262); Hart v. Mayor (9 Wend. (N. Y.) 571); Mayor v. Murphy (40 N. J. L. 145); City Council v. Ashley Co. (34 S. C. 541); Santa Cruz v. Railroad (56 Cal. 143).
This is the rule that has obtained in this State ever since the case of Riddick v. Governor (1 Mo. 147), was decided. In that case it was said, “It is an incontrovertible maxim of law, that a statute imposing a penalty for a new-created offense, or for a breach of duty, and defining the particular mode in which, and before what tribunal the penalty shall be recoverable, must be strictly pursued.”
*194The court then pointed out that the act under consideration imposed a new duty upon sheriffs, and prescribed a penalty for its violation, and the method to be pursued to impose such penalty, and the tribunal to try the cause, and said, “We are at once led to the conclusion that they [the law makers] intended to provide, specifically, an adequate remedy for the neglect of each particular duty thereby created; and a different construction would subject the sheriff to a liability which we cannot reasonably suppose.he ever intended to incur.” This rule was followed in Ellis v. Whitlock (10 Mo. 781); State v. Canton (43 Mo. 51); Moore v. White (45 Mo. 206); Parish v. Railroad (63 Mo. l. c. 286); Railroad v. Railroad (149 Mo. l. c. 253); Fusz v. Spaunhorst (67 Mo. l. c. 264).
The first canon of construction of a statutory law is, that, “An affirmative enactment of a new rule implies a negative of whatever is not included, or is different; and if by the language used a thing is limited to be done in the particular form or manner, it includes a negative that it shall not be done otherwise.” [Ex parte Joffee (46 Mo. App. l. c. 365); Sutherland on Stat. Const, (sec. 140); Wells v. Supervisors (102 U. S. 625); Cooley’s Const. Lim., pp. 78, 79, 93, 94.] To the same effect is Elliott on Railroads, sec. 711.
The same rule obtains in other jurisdictions. In City of Rochester v. Campbell (123 N. Y. l. c. 414), the Court of Appeals said: “It is a familiar rule in the construction of statutes that where a new right is created, or a new duty imposed by statute, if a remedy be given by the same statute for its violation or nonperformance, the remedy given is exclusive.”
The Am. and Eng. Ency. of Law (2 Ed.), vol. 26, p, 658, thus states the rule: “It is a well-settled rule of law that penal statutes are to be construed strictly. This rule is said to be founded on the tenderness of the law for the rights of individuals and on the plain principle that the power of punishment is vested in the *195Legislature, not in the judicial department. . . . The rule under consideration applies to all statutes which impose, as a punishment, any penalties, ■ pecuniary or otherwise, or forfeiture of money or other property, or of vested rights, or provide for the recovery of damages beyond just compensation to the party injured, whether such penalties, forfeitures, or damages are to he enforced, and recovered at the suit of the State or of the private individual.”
The same author, at page 671, says: . “A statute instituting a new remedy for an existing right does not take away a pre-existing remedy without express words or- necessary implication; the new remedy is cumulative, and either may he pursued. But when a statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute is exclusive and must he strictly pursued.”
To my mind the city ordinance, section 1760, which regulates the speed of ears, and includes what is called the Yigilant "Watch Ordinance, imposes a new duty outside of the requirement of the common law, and is much more stringent than the common law. It cannot, therefore, he said that the Yigilant 'Watch Ordinance is simply declaratory of the common law, and, therefore, affords an additional remedy to that afforded by the common law. The ordinance is a penal ordinance creating new duties of a general nature, applicable to all of the citizens of St. Louis and not intended for the benefit of any particular individual, or particular class of individuals. The ordinance prescribes the only penalty which the charter of St. Louis authorizes the municipal assembly to provide for the violation thereof. There is nothing in the letter, the spirit or the context of the ordinance, which furnishes any color to the claim that the city intended to confer a private right of civil action for a violation of it.
*196It is strictly and truly a police regulation, intended for the government of street railroads, in their relation to the city, and to the whole body of citizens, and carries with it its own punishment for.the violation of it. The courts cannot vary, enlarge, extend, modify, or in .any manner change, the specific penalty prescribed by the ordinance for the violation thereof.
For the foregoing reasons I am unable to concur in the majority opinion in respect to the matters herein discussed. It is a matter of sincere regret to me, in every instance, when I feel compelled to disagree with my brother judges upon questions of law. I have great respect for the doctrine of “stare decisis,” but I have greater respect for the fundamental principles of law, and where no property rights are concerned, I think error never, can become right, however long it may have existed and been followed.
• The principles of law are founded upon the truest sense of right and wrong, and error is incompatible with right. As herein indicated, I believe this is the first time the questions herein discussed have been thoroughly considered on legal principles and according to the science of law, in this State. And because the opinion in this case will foreclose further discussion of those questions, at any rate, during the time I will have the honor to be a member of this court, I have felt constrained, once for all, to examine at such great length, and with all the care and skill I possess, the authorities and decisions bearing on this question, and to announce my conviction, that the rule laid down by the majority opinion in this case will enlarge the rights of municipalities and of citizens inter sese, and produce much litigation that is wholly beyond the contemplation of the common law and the statutes of this State.
With the greatest respect and best feeling for my brother judges who have reached a different conclusion, I express the foregoing as my deep-seated conviction of the right concerning the questions discussed.