City of East Prairie v. Greer

• Decision Date: 25 May 1916
• Docket Number: No. 1757.,1757.
• Citation: 186 S.W. 952
• Parties: CITY OF EAST PRAIRIE v. GREER.
• Court: Missouri Court of Appeals

186 S.W. 952

CITY OF EAST PRAIRIE v. GREER.

No. 1757.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Otis Greer was convicted of violation of an ordinance and he appeals. Affirmed.

Haw & Brown, of Charleston, for appellant. W. H. Grissom, of East Prairie, for respondent.

FARRINGTON, J.

Defendant was tried and convicted in the police court of East Prairie on a complaint charging a violation of an ordinance. On appeal to the circuit court he was again convicted and fined $40. He now asks a reversal at our hands.

The body of the complaint is as follows:

"Before Wm. Murphy, police judge of the city of East Prairie, plaintiff, against Otis Greer, defendant, to the city of East Prairie, debtor, to violation of city ordinance No. 26, in relation to keeping, storing, or delivering intoxicating liquors, one hundred dollars, in this, to wit, that the said Otis Greer, did, on or about the 26th day of December, 1914, at the city of East Prairie and within the limits thereof, then and there unlawfully, not being a licensed dramshop keeper nor entitled to sell intoxicating liquor as a wholesaler, deliver to another person, as agent or otherwise, one bottle of whisky, contrary to said ordinance in such cases made and provided and against the peace and dignity of said city of East Prairie."

Defendant did not attack the complaint until plaintiff's first witness was sworn, when defendant objected to the introduction of any evidence for the reasons following:

"There is no complaint charging any offense against any ordinance of the city of East Prairie, or charging facts sufficient to constitute any cause of action or offense against this defendant; that such charge as such purported complaint attempts to make against this defendant is one for which there is no authority for the city of East Prairie to define or pass an ordinance covering under the statutes of the state of Missouri, and is based, as shown on its face, on a section of the statutes which has been declared unconstitutional by the Supreme Court of the state of Missouri."

And as soon as the city clerk had identified the ordinance, and when it was introduced, defendant's counsel objected to its admission in evidence because, among other reasons, there was no sufficient pleading of the ordinance in the complaint. These objections were all overruled.

Defendant contends that the complaint must plead the ordinance alleged to be violated, as courts do not take judicial notice of city ordinances, citing Meredith v. Whillock, 173 Mo. App. 542, 549, 158 S. W. 1061, and City of St. Louis v. Ringold, 235 Mo. 472, 139 S. W. 186. The Meredith Case contains nothing helpful here except the proposition that a prosecution for a violation of a city ordinance is a civil action. In the Ringold Case the ordinance was not pleaded by title or number, nor were its contents stated in the complaint either in hæc verba or in substance. 235 Mo. loc. cit. 476, 139 S. W. 186. The principle that courts of general jurisdiction will not take judicial notice of the ordinances of municipalities is sustained by the opinion. An examination of that opinion and of the cases therein cited, without discussion here, will disclose that they are not authority for defendant's attack on the complaint before us.

This complaint follows practically the same form as that in Village of Koshkonong v. Boak, 173 Mo. App. loc. cit. 314, 158 S. W. 874, which was drawn in compliance with the form set out in section 9450, R. S. 1909, in the article on "towns and villages." The complaint in our case is based on section 9332, R. S. 1909, in the article on "Cities of the Fourth Class." No form is prescribed in the section last mentioned, but the two sections are so similar in wording that complaints under both would follow practically the same form; however, this reference is only made casually, as the complaint in the case before us does not have to measure up to any particular form. This is a civil action, and the sufficiency of the complaint is to be determined by the same rules as are applicable in other civil cases. Village of Koshkonong v. Boak, supra, 173 Mo. App. loc. cit. 315, 158 S. W. 874.

Respondent suggests that the complaint in the case of City of Gallatin v. Tarwater, 143 Mo. loc. cit. 44, 44 S. W. 750, was identical with the one before us so far as pleading the ordinance was concerned, and that the complaint there was held good on motion to quash. In that case, however, the point that the ordinance was not pleaded, if raised, was not discussed or passed on.

We hold that the complaint contained sufficient reference to the ordinance under the authorities supra. See City of St. Louis v. Ameln, 235 Mo. loc. cit. 674, 678, 679, 139 S. W. 429; City of St. Louis v. Meyer, 235 Mo. loc. cit. 705, 139 S. W. 438.

Defendant's next attack came at the close of plaintiff's evidence after the ordinance had been introduced in evidence, when defendant offered a peremptory instruction. Defendant was not complaining of a lack of evidence, but rather that the complaint and the ordinance show that they are based on section 7226, R. S. 1909, that neither the complaint nor the ordinance pleads or proves the local option law in effect in Mississippi county, and that therefore the words "keep, store and deliver," as used in section 7227, R. S. 1909, do not make this complaint or ordinance valid, as under section 7227 the local option law must first be in effect, and the fact that local option has been adopted must be pleaded as well as proved. This objection raises a question of jurisdiction; hence the fact that after it was overruled defendant introduced evidence does not operate to waive the point, as is ordinarily the rule where defendant introduces evidence after the court has denied his peremptory instruction.

Sections 7226 and 7227, R. S. 1909, appear in the article on "Dramshops." It is true that section 7227 is only operative where local option is in effect. Section 7226 is as follows:

"Sec. 7226. Ordering, Storing and Keeping of Intoxicating Liquors by Persons Other Than Dramshop Keepers Prohibited. — It shall be unlawful for any person or persons not a licensed dramshop keeper or by law authorized to sell liquor as a wholesaler, to order for, receive, store, keep or deliver, as the agent or otherwise, of any other person, intoxicating liquors of any kind."

This section was declared unconstitutional in the case of State v. Rawlings, 232 Mo. 544, 134 S. W. 530, because the section is more comprehensive than the title of the act. See State v. Parkel, 185 Mo. App. loc. cit. 74, 170 S. W. 915. Defendant throughout the trial contended that the ordinance in question is based on that section of the statutes. One notices the great similarity in reading the ordinance,...