City of Maryville v. Wood

• Decision Date: 13 December 1948
• Docket Number: 40775
• Parties: The City of Maryville, Missouri, Respondent, v. John R. Wood, Appellant
• Court: Missouri Supreme Court

216 S.W.2d 75

358 Mo. 584

The City of Maryville, Missouri, Respondent, v. John R. Wood, Appellant

No. 40775

Supreme Court of Missouri

December 13, 1948

Rehearing Denied January 7, 1949.

Appeal from Harrison Circuit Court; Hon. V. C. Rose, Judge.

Affirmed.

Emmett L. Bartram, Fred M. Switzer, Jr., and Thomas E. Toney, Jr. for appellant; Fahey & Switzer of counsel.

(1) Ordinance No. 2210 of the City of Maryville is illegal, null void and of no effect and unenforceable against appellant, violates the natural rights and securities of the appellant, denies him his equal rights under the law, deprives him of his liberty and property without due process of law and is thus in violation of Sections 2 and 10 of Article I of the Constitution of the State of Missouri, and the trial court erred in not holding said ordinance unconstitutional. Secs. 4891-4892, R.S. 1939 as amended; State ex rel. Knise v. Kinsey, 314 Mo. 80, 282 S.W. 437; Sec. 4908, R.S. 1939; State ex rel. City of St. Louis v. Public Serv. Comm., 335 Mo. 448, 73 S.W.2d 393; Poole & Creber Market Co. v. Breshears, 343 Mo. 1133, 125 S.W.2d 23; In re Rahn's Estate, 316 Mo. 492, 291 S.W. 120, 51 A.L.R. 877; Gordon v. Gordon's Administrator, 168 Ky. 409, 182 S.W. 220, L.R.A. 1916D 576, Ann. Cas. 1917D 886; Moorshead v. Railways Co., 203 Mo. 121, 96 S.W. 261; Blanchard Co. v. Hamblin, 162 Mo.App. 242, 144 S.W. 880; State v. Clark, 54 Mo. 17, 14 Am. Rep. 471; Secs. 4890, 4901, 4935, 7442, R.S. 1939. (2) An ordinance of a municipality is invalid if inconsistent with or in conflict with the general law of the State on the same subject. Secs. 4904, 7442, R.S. 1939; State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809; (3) Ordinance No. 2210 of the respondent City of Maryville is in conflict with Sections 4891 and 4892, R.S. 1939 of the State of Missouri. St. Louis v. Klausmeier, 213 Mo. 119, 112 S.W. 516; Vest v. Kansas City, 355 Mo. 1, 194 S.W.2d 38; Neil House Hotel Co. v. City of Columbus, 144 Ohio St. 248, 58 N.E.2d 665; Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88; Secs. 4891-4892, R.S. 1939; State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809; A.J. Meyer & Co. v. Unemployment Comp. Comm., 348 Mo. 147, 152 S.W.2d 184; Artophone Corp. v. Coale, 345 Mo. 344, 133 S.W.2d 343; Funk and Wagnalls' New Standard Dictionary of the English Language; Sec. 4881, R.S. 1939; State ex rel. Ellis v. Brown, 326 Mo. 637, 33 S.W.2d 109; De Jarnett v. Tickameyer, 328 Mo. 153, 40 S.W.2d 686; St. Louis v. Bernard, 249 Mo. 51, 155 S.W. 394; State ex rel. Conklin v. Sweaney, 270 Mo. 685, 195 S.W. 714; Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; 59 C.J. 984; Secs. 4884, 4885, 4907, R.S. 1939; Atty. Gen. Op. Feb. 21, 1939; Atty. Gen. Op. July 25, 1939; Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398; St. Louis v. Wortman, 213 Mo. 131, 112 S.W. 520; St. Louis v. Ameln, 235 Mo. 669, 139 S.W. 429; St Louis v. Scheer, 235 Mo. 721, 139 S.W. 434; St. Louis v. Schulte, 235 Mo. 734, 139 S.W. 449; State ex rel. Knise v. Kinsey, 314 Mo. 80, 282 S.W. 437; State ex rel. Smith v. Berryman, 142 Mo.App. 373, 127 S.W. 129; St. Louis v. Tielkemeyer, 226 Mo. 130, 125 S.W. 1123; State ex rel. Spencer v. Anderson, 101 S.W.2d 530; Bardenheier v. St. Louis, 345 Mo. 637, 135 S.W.2d 345; Fischbach Brewing Co. v. St. Louis, 231 Mo.App. 793, 95 S.W.2d 335; State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877; State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68; Sec. 4950, Mo. R.S. 1939.

J. Dorr Ewing for respondent.

(1) Ordinance No. 2210 of the City of Maryville, Missouri, prohibiting the sale of intoxicating liquors after 10:00 p.m. on week days is fairly referable to the police powers of the City and does not contravene any right or privilege guaranteed by the constitution. Sec. 4904, R.S. 1939; Zinn v. City of Steelville, 351 Mo. 413, 135 S.W.2d 398; 48 C.J.S. 185, sec. 47, n. 73; 2 Dillon, Mun. Corps., p. 1017, sec. 674; 30 Am Jur. 275; State v. Seebold, 192 Mo. 720, 91 S.W. 491; 124 A.L.R. 541n, l.c. 542; 30 Am. Jur. 254, Par. 3. (2) Ordinance No. 2210 of the City of Maryville prohibiting sales of intoxicating liquors after 10:00 p.m. on week days is not in conflict with the Liquor Control Act of this State. Sec. 4904, R.S. 1939; State ex rel. Hewlett v. Womach, 355 Mo. 486, 196 S.W.2d 809; City of Flat River v. Mackley, 212 S.W.2d 162; Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398; Vest v. Kansas City, 194 S.W.2d 38; State v. Malone, 192 S.W.2d 68; Westerman v. Supreme Lodge Knights of Pythias, 196 Mo. 670, 94 S.W. 470; 50 Am. Jur. 342, sec. 347 ff; City of St. Louis v. Bernard, 155 S.W. 394; City of St. Louis v. DeLassur, 205 Mo. 578, 104 S.W. 12.

Tipton, P.J. Ellison, J., concurs; Leedy, J., absent.

OPINION

TIPTON

The appellant was tried in the police court of the city of Maryville for violating Ordinance No. 2210 of that city, which ordinance prohibits the sale of intoxicants between 10:00 P.M. and 6:00 A.M. on week days. The judge of that court sustained appellant's motion to quash the complaint and the city appealed the judgment to the circuit court of Nodaway County, and then on change of venue it was tried in the circuit court of Harrison County. That court overruled appellant's motion to quash the complaint. On an agreed statement of facts the court found the appellant guilty of a violation of the ordinance and assessed a fine and cost against him.

On September 17, 1947, the appellant was duly licensed by the State of Missouri and the city of Maryville to sell intoxicating liquors in the original package for consumption off the premises. At 10:40 P.M. on that date he sold Neil Sheehan a pint of wine containing 20 per cent alcohol by volume. The agreed statement of facts further showed that sixty per cent of the intoxicating liquors sold by the appellant at his licensed premises were sold between 9:30 P.M. and 1:30 A.M.

Appellant has raised certain constitutional questions in regard to the validity of this ordinance but in view of certain admissions made in his reply brief it will be necessary to pass on only one question which is stated in his reply brief as follows:

"The respondent's brief reduces this case primarily to the single issue whether the ordinance involved is inconsistent with the Liquor Control Act. We concede that the City of Maryville has the authority to regulate the sale of alcoholic beverages. The respondent concedes that such regulation must not be inconsistent with the Liquor Control Act, so the case turns on this question of consistency or inconsistency, which will determine whether the City of Maryville has the authority to prohibit the sale of alcoholic beverages during hours when it is permitted under the statute."

Both Sections 4891, as amended, and 4892, supra, say: "No person having a license under the provisions of this Act shall sell, give away or otherwise dispose of or suffer the same to be done upon or about his premises, any intoxicating liquor in any quantity between the hours of 1:30 o'clock A.M. and 6:00 o'clock a.m. . . ." Appellant contends that these two sections grant him the affirmative right to sell intoxicating liquors from 6:00 A.M. until 1:30 A.M. of the following day. If he is correct in his interpretation of this law, then of course the ordinance in question is in conflict with the above sections and therefore void. See City of St. Louis v. Klausmeier, 213 Mo. 119, 112 S.W. 516. In that case we held that an ordinance of the city of St. Louis prescribing a penalty for selling dairy products below the standard of that fixed by the Legislature was valid but that part of the ordinance fixing a higher standard than the statute required was invalid to that extent because the ordinance was in conflict with the statute.

Appellant cites the case of Neil House Hotel Co. v. City of Columbus, 144 Ohio St. 248, 58 N.E. 2d 665, to support its construction of these two sections of our Liquor Act. In that case the statutes of Ohio created an agency called the Board of Liquor Control and gave it authority to promulgate rules and orders to carry out the provisions of the Liquor Control Act, including the designation of hours which liquor might be sold. That board of its regulation No. 30 prohibited the sale and consumption of intoxicating liquor between the hours of 2:30 A.M. and 5:30 A.M. The court held that it gave a holder of a D-3a permit the right to sell liquor at all other hours and therefore any ordinance of a city that shortened the hours that liquor might be sold was in conflict with the statute. As we understand the opinion, the Liquor Control Act of Ohio gave the Board of Control the exclusive right to regulate the conduct of those engaged in the sale of alcoholic beverages. To the same effect is the case of Noey v. City of Saginaw, 271 Mich. 595, 261 N.W. 88. In that case the liquor control commission was given complete control of alcoholic beverage traffic and of course any ordinance that shortened the hours permitted by a regulation of the commission would conflict with the regulation.

But our Liquor Act does not attempt to assert sole control over the subject matter. We have held that the act is "a comprehensive scheme for the regulation and control of the manufacture, sale, possession, transportation and distribution of intoxicating liquor." John Bardenheier Wine & Liquor Co. v. City of St. Louis, 345 Mo. 637, 135 S.W. 2d 345. But it is not all inclusive. State ex rel. Hewlett v. Womach, 196 S.W. 2d 809. In fact, Section 4904, R.S. Mo., 1939, expressly gives a city...