City of St. Louis v. Tielkemeyer

• Decision Date: 01 March 1910
• Citation: 125 S.W. 1123,226 Mo. 130
• Parties: CITY OF ST. LOUIS v. HENRY TIELKEMEYER, Appellant
• Court: Missouri Supreme Court

125 S.W. 1123

226 Mo. 130

CITY OF ST. LOUIS v. HENRY TIELKEMEYER, Appellant

Supreme Court of Missouri, First Division

March 1, 1910

Appeal from St. Louis Court of Criminal Correction. -- Hon. Hiram N Moore, Judge.

Reversed.

Chas H. Brock and Simon S. Bass for appellant.

(1) A statement filed in proceedings under a city ordinance for the recovery of a penalty, must, in order to be sufficient specify the elements of the offense sought to be charged with enough particularity to bar another action for the same offense. St. Louis v. Babcock, 156 Mo. 148. (2) When the ordinance creating an offense sets forth an exception thereto, the statement, in order to be sufficient, must negative the exception. Tarkio v. Loyd, 109 Mo.App. 171. (3) The State has the power, by the enactment of a general law on any subject to repeal any provision of the charter of the city of St. Louis, or any ordinance enacted thereunder on the same subject. Constitution, secs. 23 and 25, art. 9; Charter, cl. 5, sec. 26, art. 3; St. Louis v. Dorr, 145 Mo. 466; State v. Kessels, 120 Mo.App. 240; State v. Stobie, 194 Mo. 14. (4) A special statute of this State, enacted in 1889, "confines and restricts" the city of St. Louis in the passage of its ordinances and in its jurisdiction within the limits prescribed by State law on the same subject. R. S. 1899, sec. 6258; St. Louis v. Meyer, 185 Mo. 583; Moberly v. Hoover, 93 Mo.App. 663; Warrensburg v. McHugh, 122 Mo. 649. (5) The definition of a dramshop-keeper under the city ordinance is inconsistent with the definition of a dramshop-keeper under the general law of the State, and therefore void. R. S. 1899, sec. 2990; St. Louis v. Meyer, 185 Mo. 583; St. Louis v. Wortman, 213 Mo. 131; St. Louis v. Klausmeier, 213 Mo. 119. (6) That part of section 2030 of the ordinance defining the offense is so related to the definition of a dramshop-keeper therein that if the definition of a dramshop-keeper therein is void as being inconsistent with the definition of a dramshop-keeper under the general law of the State, the whole of said section must be held void. State v. Bengsch, 170 Mo. 81; State v. Bird, 186 Mo. 205; Haag v. Ward, 186 Mo. 325. (7) Section 2031 of the ordinance relating to applications for dramshop licenses has been repealed in toto by the general law of the State, and, if so, that part of section 2030 which defines the offense with which appellants are charged, must be declared void for the reason that the two sections are so interrelated and welded together as to be an entity, standing or falling together. R. S. 1899, secs. 3023, 2997; Laws 1905, p. 142; State v. Bengsch, 170 Mo. 81; State v. Bird, 186 Mo. 205; Haag v. Ward, 186 Mo. 325; State v. Higgins, 84 Mo.App. 531; Cooper v. Hunt, 103 Mo.App. 9; State v. Higgins, 71 Mo.App. 180; S. C., 97 Mo.App. 212; State v. McCammon, 111 Mo.App. 626; State v. Hoblitzelle, 85 Mo. 64. (8) The penalty section of the ordinance, section 2044, is void for the reason that it is inconsistent with the State law on the same subject, in that it prescribes a higher penalty for the act prohibited than is provided by the general law of the State. R. S. 1899, sec. 3004; State v. Taylor, 186 Mo. 608; State v. Anslinger, 171 Mo. 600; State v. Pond, 93 Mo. 645; Commonwealth v. Kimball, 21 Pick. (Mass.) 373; State v. Whitworth, 8 Port. (Ala.) 434; Smith v. State, 1 Stew. (Ala.) 506; Hoffman v. Commonwealth, 123 Pa. St. 75; Leighton v. Walker, 9 N.H. 59; Carter v. Hawley, Wright (Oh.) 75; State v. Callahan, 109 La. 946; Gorman v. Hammond, 28 Ga. 85.

L. E. Walther and B. H. Charles for respondent.

(1) The city has authority under its charter to license, regulate, tax or suppress saloons, bar houses, tippling houses, dramshops, and gift enterprises. Charter, art. 3, sec. 26, cl. 5; R. S. 1899, pp. 2485, 2486. (2) Every dramshop-keeper is required by law to take out both a State license and a city license. R. S. 1899, sec. 3026; Laws 1905, pp. 142, 143; State ex rel. v. Higgins, 71 Mo.App. 180; State ex rel. v. Bell, 119 Mo. 70. (3) All the provisions of the city ordinance respecting dramshops remain in force except such as have been repealed by the statutes creating the office of excise commissioner for the city. State ex rel. v. Bell, 119 Mo. 70. (4) It is no objection to an ordinance that it covers the same ground as a statute. St. Louis v. Bentz, 11 Mo. 43; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. Delassus, 205 Mo. 578. (a) A defendant may even be subjected to two penalties for the same offense. St. Louis v. Cafferata, 24 Mo. 97; St. Louis v. Muir, 164 Mo. 610; State v. Gustin, 152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Lebanon v. Gordon, 99 Mo.App. 277. (b) Merely because two laws are different does not make them inconsistent, and the mere fact that an ordinance differs from the general laws of the State will not invalidate it, provided it is not inconsistent therewith. St. Louis v. Cafferata, 24 Mo. 97; St. Louis v. Delassus, 205 Mo. 578. (c) "The right of a municipal corporation in this State to maintain in its own name a proceeding to recover a fine for nonobservance of an ordinance has never been questioned, even though there be a general law of the State imposing a fine for a like offense." Ex parte Hollwedell, 74 Mo. 402; St. Louis v. Cafferata, 24 Mo. 94; State ex rel. v. Walbridge, 119 Mo. 392. (5) It was not necessary for the statements or informations to negative the provisions of an entirely different section from that in which the offense is defined and denounced. State v. Snyder, 182 Mo. 498; State v. Bockstruck, 136 Mo. 351; State v. Handler, 178 Mo. 42. (a) The matter found in section 2034 of the ordinance is not an exception within the meaning of the rule. (b) Where defendant comes within the provisions of a subsequent section or proviso, this is a matter of defense, and not to be pleaded in advance in the information. State v. Quinn, 170 Mo. 183; State v. Handler, 178 Mo. 42; State v. Snyder, 182 Mo. 498; State v. Bockstruck, 136 Mo. 351; State v. Jenkins, 139 Mo. 535.

OPINION

VALLIANT, J.

Appellant was convicted in the Second District Police Court of St. Louis of selling intoxicating liquors without a license, in violation of a city ordinance, and appealed from that judgment to the St. Louis Court of Criminal Correction, where he was again tried and convicted and sentenced to pay a fine of fifty dollars, from which judgment he has taken this appeal.

The testimony at the trial showed that appellant had committed the act specified in the information. There was no testimony to the contrary, nor did he claim to have had a license. There was at first some indication of a purpose on the part of appellant to construct a defense on the theory that he was acting as agent or officer of a social club dispensing its own liquors to its own members, but if he ever had such a purpose he abandoned it at the trial, for he offered no evidence to sustain it. He introduced in evidence the charter of what purported to be a social club, called the National Athletic Club, but offered no evidence to show the real character of the club or his connection with it. There is no such defense now claimed. The only grounds relied on by appellant for a reversal of the judgment are the alleged insufficiency of the information to state facts sufficient to constitute a charge of violation of the city ordinance and a denial of the validity of the ordinance itself. Points on those grounds were duly made in the trial court, and when ruled against appellant his exceptions were preserved in due form.

The city ordinance on which this prosecution is based, or so much thereof as is necessary to be considered in this case, is as follows:

"Sec. 2030. Dramshop-Keeper Defined. -- A dramshop-keeper is a person permitted by law or ordinance to sell intoxicating liquors in any quantity less than one gallon. No person or copartnership of persons or corporation shall, in this city, directly or indirectly, in person or by another, sell, barter or deliver, for or on his or their account, any intoxicating liquors in quantities less than one gallon, without a license first obtained therefor, according to the provisions of this article, as a keeper of a dramshop.

"Sec. 2034. Merchants Exempt from Article. -- This article shall not be construed to apply to any sale of intoxicating liquors by any person under authority of ordinance regulating merchants' licenses.

"Sec. 2035. Amount of Licenses. -- For a license as a dramshop-keeper there shall be paid the sum of two hundred and fifty dollars for city purposes (and twenty-five dollars for State purposes), and any such license shall authorize the business therein designated to be carried on at one place only, and such license shall remain in force for the period of six months from its date; provided, that the license commissioner may, with the approval of the comptroller, issue any such license for a different period than six months, if necessary, in order that the State and city licenses to the same party may expire at the same time and at the date fixed by this article. No fee shall be charged by the license commissioner for administering oaths or taking affidavits.

"Sec. 2044. Penalty. -- Whoever shall violate any of the provisions of this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum of not less than fifty nor more than three hundred dollars.

"Sec. 2045. Duty of License Commissioner to Enforce. -- It shall be the special duty of the license commissioner to see that the provisions of this article are enforced."

Other sections of the ordinance prescribe how licenses are to be applied for, the process through which the applications are to go, the place where the licensee is to conduct his...