City of Cape Girardeau v. Goehring

• Citation: 12 S.W.2d 761
• Decision Date: 09 January 1929
• Docket Number: No. 20382.,20382.
• Parties: CITY OF CAPE GIRARDEAU v. GOEHRING.
• Court: Missouri Court of Appeals

12 S.W.2d 761

CITY OF CAPE GIRARDEAU v. GOEHRING.

No. 20382.

St. Louis Court of Appeals. Missouri.

January 9, 1929.

On Rehearing January 29, 1929.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be officially published."

Ernest Goehring was convicted before a police judge of violating an ordinance of the City of Cape Girardeau, by operating an automobile without having first obtained a license therefor. On appeal, the court of common pleas directed a verdict for defendant, and the City appeals. Affirmed.

Rush H. Limbaugh, City Counselor, of Cape Girardeau, for appellant.

Spradling & Dalton, of Cape Girardeau, for respondent.

NIPPER, J.

The city of Cape Girardeau, through it proper officers, filed a complaint against the respondent, charging that on September 22, 1926, and for a long time prior thereto, he had violated a certain ordinance of the city providing for the levying and collection of a license tax on motor vehicles, by operating an Oldsmobile automobile without having first obtained a city license therefor. The case was heard before the police judge and he was fined $25. An appeal was taken to the court of common pleas, and after hearing the testimony the court directed a verdict for the respondent, and the city of Cape Girardeau has appealed.

The respondent filed a motion to quash the information, and in support of that motion the record discloses that on October 13, 1926, the police judge wrote a letter to the mayor and commissioners, advising them that he would be absent from the city until the 8th of November, following, and asked that a police judge be appointed to attend to the business of the police court during his absence. The mayor appointed Mr. John I. Sample to act as police judge, and on October 26, 1926, the defendant was found guilty before such judge, and his punishment assessed as above stated. The contention of the respondent, in filing his motion to quash, was that the police judge so appointed had no authority or jurisdiction in the matter, because the absence of the regular police judge required the appointment of a justice of the peace in said city, to act as such police judge during the absence of the regularly appointed official in accordance with the provision of section 8246, R. S. of Mo. 1919.

As opposed to this motion to quash, the city of Cape Girardeau offered in evidence a certain ordinance providing that, if the police judge be absent, the mayor shall designate some suitable person to temporarily act as police judge until such absence or disqualification shall cease, or until the council elects his successor.

After this motion was overruled the city offered in evidence certain ordinances prohibiting the operation of an automobile without a city license. At the close of the plaintiff's case, the court directed a verdict for the respondent, and an appeal has been duly taken to this court.

The contention of appellant here is that only one point is made on appeal, and its argument is directed to the proposed error in directing the jury to acquit the respondent, because the rules governing the trial of civil cases applies here, and, as the plaintiff had offered substantial testimony showing the guilt of the defendant, the question of such guilt should be determined by the jury.

It is contended by respondent that he went to the city clerk and was advised by such clerk that he could transfer his license from one automobile to another in case he should sell a car upon which he had a license. It is also contended that this advice was given by the city clerk prior to the time he was arrested by a police officer of the city, and that, therefore, he was acting in good faith upon the advice of a representative of the city. It is the contention of the city, however, that this advice was not given until after he was arrested for the offense charged in the complaint. As we read the record, no such advice was given by the city clerk until after respondent had been arrested.

The first question presented is whether or not John I. Sample, who was acting as police judge...