City of Gallatin v. Tarwater

• Decision Date: 23 February 1898
• Citation: 44 S.W. 750,143 Mo. 40
• Parties: CITY OF GALLATIN v. TARWATER.
• Court: Missouri Supreme Court

44 S.W. 750

143 Mo. 40

CITY OF GALLATIN v. TARWATER.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

ORDINANCE — VALIDITY — DRUNKENNESS — CIVIL ACTIONS — RECOVERY OF FINE — COMPLAINT.

1. Where express authority is given to a city by its charter to prohibit drunkenness within its borders, an ordinance passed in pursuance of that power prohibiting public drunkenness is constitutional, as an exercise of a proper delegation of the police power.

2. Prosecutions by municipal corporations for the recovery of fines are civil actions.

3. Where an information and complaint by a city for drunkenness describes the offense in the language of the ordinance, it is sufficient.

4. Where a complaint for drunkenness charged defendant with being drunk on the streets and on the sidewalks and in the business houses of the city, which are disjunctively made punishable by the same ordinance, imposing a like penalty in each case, there is but one offense charged, which will be supported by proof of any one of the breaches alleged.

Appeal from circuit court, Daviess county; E. J. Broaddus, Judge.

Action of city of Gallatin against James P. Tarwater for drunkenness. From a judgment quashing the complaint, plaintiff appeals. Reversed.

J. P. O. Givens and J. A. Selby, for appellant. Hamilton & Dudley, for respondent.

BRACE, P. J.

The plaintiff is a municipal corporation by virtue of a special charter, possessing, among others, the following powers therein granted:

"Sec. 19. To prevent and punish the firing of firearms within the limits of the city, to prevent and punish the furious riding or driving of horses or mules within the corporate limits of the city, and also to prevent and punish all fighting, quarreling, Sabbath breaking, drunkenness, indecent, profane or obstreperous language within the limits of the corporation."

"Sec. 22. To regulate the police of the city, to impose fines, forfeitures and penalties for the breach of any ordinance not to exceed the sum of five hundred dollars, and provide for the recovery and appropriations of such fines and forfeitures, and the enforcement of such penalties, and in default of payment thereof to provide for imprisonment in the county jail not to exceed one month, or at labor on the streets, or both."

Sess. Acts 1870, p. 298.

In pursuance of the powers thus granted, the following among other ordinances in the Revised Ordinances of said city of 1885 were enacted:

"Section 1. That any person who shall appear upon any street or sidewalk, or in any business house within the corporate limits of the city of Gallatin, in a state of intoxication or drunkenness, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than one dollar nor more than twenty dollars."

In a proper proceeding authorized by the charter and ordinances passed in pursuance thereof, the defendant, Tarwater, was arrested, brought before a justice of the peace, and fined, for a violation of the ordinance set out. From the judgment of the justice, he appealed to the circuit court, where, upon his motion, the complaint was quashed, the defendant discharged, and judgment for costs rendered against the city, from which the city appeals. The complaint and motion to quash are as follows:

"Complaint.

"James Tarwater to the City of Gallatin, Debtor.

"To violation of City Ordinance No. 14, § 1, in relation to punishing offenses against public morals and decency, twenty dollars, in this, to wit: That the said James Tarwater, on the 28th day of May, 1895, at the city of Gallatin, and within the limits thereof, did then and there unlawfully appear upon the streets and sidewalks and in the business houses, in a state of intoxication and drunkenness, contrary to the said ordinance in such case made and provided, and against the peace and dignity of said city.

"Motion to Quash.

"Comes now the defendant, and moves the court to quash the information and complaint in above cause, for the reasons: (1) Because said information and complaint does not state facts sufficient to constitute a cause of action or any offense, under the law or ordinances of said city; (2) because said information does not state where defendant appeared drunk in said city, whether in the public streets or alleys of said city, or some business house therein; (3) because the same does not allege that defendant was drunk in the public streets or alleys, or in some business house of said city, to the disturbance of any person or citizen therein."

1. While it does not appear from the record upon what ground the motion to quash was sustained, it is conceded by both sides that one of the grounds upon which the ruling was based was that the ordinance was...