City of Fredericktown v. Hunter
| Citation | 273 S.W.2d 732 |
| Decision Date | 21 December 1954 |
| Docket Number | No. 29036,29036 |
| Parties | CITY OF FREDERICKTOWN (Plaintiff), Respondent, v. W. G. HUNTER (Defendant), Appellant. |
| Court | Court of Appeal of Missouri (US) |
Robert A. McIlrath, Flat River, for appellant.
Melvin Englehart, Fredericktown, for respondent.
In this prosecution for the violation of a city ordinance instituted in the Police Court of the City of Fredericktown, defendant was fined $5 and costs. On appeal to the Circuit Court of Madison County, after a plenary de novo trial, he was found guilty by the jury and his punishment assessed at a fine of $1 and costs. Apparently believing that some grave matter of 'principle' is involved, he has taken an appeal to this court.
The ordinance, for the violation of which this cause was begun, is Sec. 29, of Ch. VII, of the Revised Ordinances of respondent City, which reads oas follows:
Evidently this ordinance was enacted pursuant to Section 301.340 RSMo 1949, V.A.M.S., paragraph 1 of which (being the only paragraph pertinent here) provides:
'Municipalities, by ordinance, may levy and collect license taxes from the owners of and dealers in motor vehicles and trailers, residing in such municipalities, and require the display of license plates or stickers, except that plates or stickers shall not be required in cities having a population of more than seventy-five thousand but such license taxes shall not exceed the amount authorized therefor by the municipalities during the year 1933, exclusive of any drivers' license fees, including the cost of plate or stickers and notarial fee.'
The first assignment of error complains of the overruling of defendant's motion for directed verdict. Defendant offered no evidence.
Plaintiff City presented evidence that defendant was a resident of said City for years, although his business as a dealer in automobiles was outside its corporate limits; that on June 1, 1953, and on many other occasions he was seen by the City Marshal and another witness driving a gray Oldsmobile automobile and certain others; and that the same car was at his home when the Marshal called on him there. The car bore a state dealer's license, but defendant never purchased a City license, and the car had no city sticker.
The ordinance section quoted above was the sole and only ordinance offered in evidence. To state the matter otherwise, there was no proof of any ordinance making it an offense, and subjecting one of the penalty of a fine, if a person failed to pay the city license fee. We cannot take judicial notice that there are other sections of the ordinance, nor could the Circuit Court. City of Tarkio v. Loyd, 179 Mo. 600, 78 S.W. 797; City of St. Louis v. Pope, Mo.App., 129 S.W.2d 106; Kansas City v. McLendon, Mo.App., 197 S.W.2d 713. The quoted section establishes the license fee, but provides no penalty, by fine or otherwise, for failure to comply.
For lack of proof of any ordinance creating an offense, subject to fine, the case should...
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