OPINION
ROBERTSON, P. J.
--A
verified complaint was filed with the mayor of plaintiff city
by a private citizen charging defendant with violating a city
ordinance. A warrant was issued, defendant was arrested and
upon a trial he was convicted. He appealed to the circuit
court and there filed a motion to dismiss. The motion was
sustained and the city has appealed. The propositions of law
involved and the contentions in behalf of defendant are
succinctly stated by his attorneys as follows:
"The City of Richland is a city of the
fourth class and was incorporated under the statute of this
State permitting the same and derived all of its power from
article V of chapter 84, Revised Statutes of Missouri, 1909;
in other words, the above article is the Constitution for the
city and the document to which it must look for all of its
rights and privileges and from which it must derive all of
its power. It cannot act except under the provisions of such
article, or under the authority of its own ordinance enacted
and created by the authority given by such statute.
"A
proper determination of this cause will require the
court's attention to sections 9327, 9328, 9330, 9332,
9333 and 9334, Revised Statutes 1909.
"Section
9327 provides among other things that the duties, powers and
privileges of officers of every character in any way
connected with the city government not herein defined shall
be prescribed by ordinance.
"Section
9328 provides that the marshal shall have power at all times
to make or order an arrest with proper process for any
offense against the laws of the city, and shall also have
power to make arrests without process for offense against the
city laws committed in his presence.
"Section
9330 provides that the Mayor and Police Judge shall have
exclusive original jurisdiction to hear and determine all
offenses against the city ordinance, and that he shall keep a
docket in which he shall enter every case commenced before
him, and the proceedings therein.
"Section
9332 provides the style for the prosecution and requires that
the Mayor shall state in his docket the name of the
complaint, the nature and character of the offense, the date
of the trial, the names of all the witnesses sworn and
examined, the finding of the court or jury, and every fact
necessary to show the full proceedings in each case; said
section further provides that the complaint, when made by the
marshal or any policeman against any person arrested without
process and in custody, shall be reduced to writing and sworn to by officer before such person shall be
put upon his trial.
"Section
9333 provides that all warrants issued by the Mayor shall be
directed to the city marshal, etc., and provides for the
manner of service.
"Section
9334 provides that when any person shall be arrested and
brought before the Mayor that he shall hear and determine
forthwith the complaint alleged against the defendant, unless
the trial be continued; and further provides that the
defendant shall be entitled to a trial by a jury, as in
prosecutions before a Justice of the Peace.
"It
will be noted that all of the sections are silent as to the
grounds upon which the Mayor may issue a warrant or upon the
things to be done to justify its issuance.
"It
will also be noticed that all of these sections, and in fact
all of the statutory enactments touching cities of the fourth
class, are absolutely silent and make no provision for the
filing of any complaint by a private citizen, either orally
or in writing. The only reference made to a complaint, except
by an officer of the city, being in section 9332, which
requires the Mayor to state in his docket the name of the
complainant.
"Respondent
contended in the court below, and as well as here, that the
mere affidavit of a private person was not sufficient to
begin and maintain a suit in behalf of the city against an
individual to recover for the city a penalty provided by its
ordinance for a violation thereof; that it was necessary that
some officer created by law, and upon whom rested the
enforcement of the laws of the city, should father such
prosecution for two reasons:
"1st.
The Charter or Constitution of the city did not authorize
prosecutions in the name of the city in such way and manner
and that there was no other law which did authorize it.
"2nd.
That to permit prosecutions in that manner would allow an
individual not an officer of the city to engage the city in a
lawsuit, and entail labor and expense upon
the officers as well as upon the citizens, without the
consent of the city or its constituted authorities."
The
first legislation on the subjects covered by section 9332,
Revised Statutes 1909, was in 1877 (Laws 1877, p. 181,
section 3) and that part now material then read as follows:
"The complaint, when made by the marshal, assistant
marshal, or regular policeman, need not be in writing, if the
defendant be present in court and in custody, but in every
other case the complaint shall be in writing and sworn to
before the warrant be issued for the arrest of the
defendant." The section as then enacted is the same as
it appears in Revised Statutes 1879 (section 4983) and in
Revised Statutes 1889 (section 1635).
In 1895
(Laws 1895, page 71, section 33) that part of the section was
changed to read as follows: "The complaint, when made by
the marshal or any policeman against any person arrested
without process, and in custody, shall be in writing, and
sworn to, before a warrant be issued for his arrest."
In 1909
(Laws 1909, p. 303) this law was again amended so that it
reads as it now appears in said section 9332, Revised
Statutes 1909, as follows: "The complaint, when made by
the marshal or any policeman against any person arrested
without process and in custody, shall be reduced to writing
and sworn to by such officer before such person shall be put
upon his trial."
Section
9328, Revised Statutes 1909, providing that the city marshal
shall have power to make arrests without process in all cases
in which offenses against the city shall be committed in his
presence, took its present form in 1895 (Laws 1895, p. 71,
section 29).
We
shall adhere to the rules insisted upon by the defendant that
plaintiff city can exercise only such powers as are granted
in express words, or those necessarily incident to, or
implied in the powers expressly granted; that the
jurisdiction of the mayor, acting as police judge, is limited
and must be exercised in strict conformity to the statute and
that the complaint referred to in
said sections 9332, and 9334 does not mean an indictment or
information as used in our constitution and statutes
governing prosecutions for criminal offenses; but is such a
procedure as is referred to and authorized by said sections.
That "complaint" is a technical term descriptive of
proceedings before magistrates was held in Commonwealth
v. Davis, 11 Pick. (Mass.) 432, 436. In 8 Cyc. 407 we
find this definition: "A form of legal process which
consists of a formal allegation or charge against a party
made or presented to the appropriate court or officer, as for
a wrong done or crime committed; in the latter case generally
under oath. . . . ...
