City of Hannibal v. Guyott

• Decision Date: 31 October 1853
• Citation: 18 Mo. 515
• Parties: THE CITY OF HANNIBAL, Respondent, v. GUYOTT, Appellant.
• Court: Missouri Supreme Court

18 Mo. 515

THE CITY OF HANNIBAL, Respondent,

v.GUYOTT, Appellant.

Supreme Court of Missouri.

October Term, 1853.

1. The act of March 10th, 1849, repealing the act of February 16th, 1847, amendatory of the act concerning “Inns and Taverns” (R. C. 1845,) left all the provisions of the act of 1845 in full force, and thereafter the holder of a tavern license was permitted to sell intoxicating liquor, in less quantity than one quart. The act of 1847, being an amendatory, and not a repealing act, the provision of our statute that the repeal of a repealing act shall not revive the original, does not apply.

2. A city ordinance cannot abridge the rights of the holder of a previously issued tavern license, in regard to the sale of intoxicating liquors.

Appeal from Hannibal Court of Common Pleas.

Richmond and Harrison, for appellant.

The act of 1847 did not repeal the act of 1845, but merely added a condition, which had to be complied with before the tavern keeper could sell liquors. The repeal of the act of 1847, in 1849, left the law as it was in 1845, without the condition imposed by the act of 1847. If this is so, then the license to the defendant, dated January 3, 1853, gave him a vested right to sell liquor for one year, and this right could not be impaired by any subsequent ordinance of the city of Hannibal. (3 Story's Comm. on the Cons. 257-64; Dartmouth College v. Woodward, 4 Wheat. 518, 624; Terrett v. Talyor, 9 Cranch, 52.)

Green & Hawkins, for respondent.

The charter of the city of Hannibal gave the city power to pass the ordinance for a violation of which, the defendant is prosecuted. The court did not err in refusing to permit the defendant to read his tavern license in evidence, because at the time it was issued, it did not, nor does it now, confer upon the holder the privilege of vending intoxicating liquors, in less quantities than one quart. The law concerning “inns and taverns,” approved March 18, 1835, and incorporated into the revision of 1845, so far as it related to the sale of intoxicating liquors by virtue of any license issued under it, was abrogated by the act approved February 16th, 1847; and there is no other way by which the privilege to sell intoxicating liquor, in less quantities than one quart, can be acquired in this State, than by a compliance with the provisions of the statute entitled “groceries and dram-shops.” (R. C. 1845.) It is true that the law of 1847 was itself repealed by the act of 1849; but this repealing act did not revive the law of 1845, so as to confer upon the holder of a tavern license the privilege of selling intoxicating liquors. (See art. 3, § 1, of act concerning “laws,” R. C. 1845.) If, however, the law as it stands, gives to the holder of a tavern license the privilege of selling intoxicating liquors, as contended for, then we insist that such privilege is restrained, so far as the limits of the city of Hannibal are concerned, by the ordinance passed in pursuance of the authority conferred by the charter.

RYLAND, Judge, delivered the opinion of the court.

This action was brought before the recorder of the city of Hannibal, to recover the penalty for a violation of the city ordinance concerning the sale of intoxicating liquors. The city obtained judgment for one hundred dollars, the amount of the penalty, and the defendant appealed to the Hannibal court of Common Pleas. The plaintiff again recovered judgment for the penalty, and the defendant having failed in his motion for a new trial, prosecutes his appeal in this court.

From the bill of exceptions it appears that the city of Hannibal passed an ordinance on the 6th of April, 1863, to regulate the sale of intoxicating liquors within the city. There is no question about the making and publishing of the ordinance, the incorporation of the city, or the sale of the liquors, as charged. The defendant below admitted, that he had sold intoxicating liquors at a house on Front street, within the city of Hannibal, at the time and in the quantity and to the person as charged by the plaintiff, and admitted that the ordinance on which the proceedings in this case were founded, had been duly passed and published, as required by the charter of the city. The plaintiff read the original act of incorporation of the city and the act amendatory thereof; then offered to read the ordinance to regulate the sale of intoxicating liquors within the city of Hannibal, approved April 6th, 1853, which is as follows:

Be it ordained by the city council of the city of Hannibal: Sec. 1. No person shall, directly or indirectly, sell intoxicating liquors in this city who has not been licensed as a grocer or dram-shop keeper, under the provisions of the statute law of the state, and paid a license tax to the city.

Sec. 2. A grocer or dram-shop keeper is such as he is defined to be by the existing statute of this state.

Sec. 3. A grocer, before he shall directly or indirectly sell or vend intoxicating liquors in this city, shall pay a license tax to the city of two hundred and fifty dollars for every six months.

Sec. 4. A dram-shop keeper, before he shall sell intoxicating liquors in this city, shall pay a license tax to the city of five hundred dollars for every six months.

Sec. 5. The term, “intoxicating liquor” as used in this ordinance, shall be construed to mean wine and spirituous liquors, and any composition of which wine or spirituous liquor is a part.

Sec. 6. Whoever in this city, being a merchant, confectioner, beer-house keeper, dealer in provisions, or any other species of merchandise, and occupying a place or stand for that purpose, shall, at that place, or stand, deal out, distribute or give away to another, intoxicating liquor, shall be deemed to have sold it, as much as if compensation were directly paid for it, and upon conviction, shall forfeit and pay for every such offence, a fine of one hundred dollars.

Sec. 7. No person in this city shall, directly or indirectly, sell or deliver to another, any intoxicating liquor on the day of the week commonly called Sunday, except for medicinal purposes.

Sec. 8. No grocer or dram-shop keeper shall sell intoxicating liquor in more than one place in the city at a time, nor shall the license of a grocer or dram-shop keeper be assignable or transferable.

Sec. 9. This ordinance shall not be so construed as to prevent a druggist from selling wine and spirituous liquors for sacramental and medicinal purposes, in quantities not exceeding one quart, if directed to do so by the prescription of a practicing physician.

Sec. 10. Whoever shall violate any provision of this ordinance shall, upon conviction, forfeit and pay a fine of one hundred dollars for the first offence, and one hundred and fifty dollars for each subsequent offence, to be collected by action of...