City of Springfield v. Stevens

• Decision Date: 07 January 1949
• Docket Number: 40549
• Parties: City of Springfield, Missouri, Respondent, v. Freddie Stevens, Appellant
• Court: Missouri Supreme Court

216 S.W.2d 450

358 Mo. 699

City of Springfield, Missouri, Respondent, v. Freddie Stevens, Appellant

No. 40549

Supreme Court of Missouri

January 7, 1949

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed (as modified).

J. D Gustin for appellant.

(1) The court should have sustained the defendant's motion to dismiss for failure to comply with the mandatory provisions of the statutes, R.S. 1939, secs. 6796 and 6798. (2) The "information" in this case is just what it is entitled, a criminal information. It has been held that a criminal information does not state a cause of action for violation of a city ordinance. Bethany v. Custer, 227 Mo.App. 927; Mexico v. Sharp, 221 Mo.App. 195, 300 S.W. 308. (3) A statement of a cause of action in a civil proceeding must (shall) contain: (1) A short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief which he deems himself entitled. Acts 1943, p. 369, sec. 36. (4) There was nothing in the "information" to advise the defendant that a recovery of a fine would be sought. The admission of the penalty Section 561 in the evidence was without any foundation whatever. (5) The declarations of law requested by defendant correctly declared the law of the case. This is particularly true as to No. 3. It is a matter of common knowledge that wine has many uses other than for beverage purposes. The word used in the ordinance is beverage -- intoxicating beverage and not intoxicating liquor. (6) Appellant contends that the ordinance, section 554, is obnoxious to the constitutional prohibition against local or special legislation. Of all of the numerous methods of transportation of passengers and the delivery of merchandise which the charter entrusts to the discretion of the city council, they selected the single one of taxicabs and taxicab drivers. R.S. sec. 6609, Pars. XVII and XIX; Springfield v. Smith, 322 Mo. 1. c. 1143. (7) Under the general liquor laws of the State (Acts 1935, p. 267, sec. 25, second paragraph) the authority of the city councils of incorporated cities over the subject of intoxicating liquors is limited to "fixing and collecting license fees from distillers, brewers, and others and to the passage of ordinances regulating and controlling the sale thereof." Secs. 4904, 7442, R.S. 1939; St. Louis v. Meyer, 185 Mo. 583, 84 S.W. 941; State v. White, 263 S.W. 192; Bardenheir v. St. Louis, 125 S.W.2d 345. (8) It is a general and undisputed proposition that a municipal corporation possesses and can exercise the following powers and no other: 1. Those granted in express words. 2. Those necessarily or fairly implied or incident to the powers expressly granted. 3. Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any reasonable doubt concerning the existence of the power is resolved by the courts against the corporation and the power is denied. St. Louis v. Kaime, 180 Mo. 322, 79 S.W. 140. (9) The double charge in this case was "possession of" and "transporting in his taxicab intoxicating liquor or beverage." The judgment of the court ignored the charge of possession, which is of course equivalent to acquittal of that charge. We deem that too well settled to require citation of precedent. Of the charge of transporting in his taxicab there was not a particle of proof. Sec. 6798, R.S. 1939, prohibits a judgment of conviction in any case "except upon sufficient legal testimony" or a plea of guilty.

John F. Carr for respondent.

(1) The complaint in this case is sufficient. Sec. 6796, R.S. 1939; City of Popular Bluff v. Meadows, 187 Mo.App. 450, 173 S.W. 11; City of Moberly v. Kervin, 234 S.W. 514; City of St. Louis v. Liessing, 190 Mo. 464, 98 S.W. 611. (2) In prosecutions for violation of city ordinances, the absence of a demand or prayer for relief is not fatal to the complaint. St. Louis v. Vert, 12 Mo.App. 571, affirmed 84 Mo. 204; City of Moberly v. Kervin, 234 S.W. 514; City of Liberty v. Moran, 121 Mo.App. 682, 97 S.W. 948; City of St. Louis v. Liessing, 190 Mo. 464, 98 S.W. 611; 3 McQuillin, Mun. Corp. (2nd Ed.), sec. 1142, subsec. (4). (3) A section of comprehensive city ordinance dealing with the licensing, regulation and control of taxicabs is not unreasonable because it makes no exception of medicinal spirits in prohibiting taxicab drivers from possessing, carrying or transporting intoxicating beverages or liquors. Taxicabs are passenger carriers as distinguished from merchandise carriers and left to control of municipalities. Secs. 5720 (d), 5721, R.S. 1939, as reenacted Laws 1945, p. 1206; State v. Public Service Comm., 185 S.W.2d 347; Sec. 535, Art. 4, Chap. VI, Rev. Ord. City of Spfld, 1946. (4) "Liquor" and "Beverage" interchangeable terms for purpose of ordinance. Webster's International Dictionary, 1919. (5) Appellant, asserting unconstitutionality, has burden of proof. Thompson v. St. Louis & S.F.R. Co., 334 Mo. 958, 69 S.W.2d 936; State v. Knight, 323 Mo. 1241, 21 S.W.2d 767. (6) Whether a broader class might be included is not proper test. State v. Knight, 323 Mo. 1241, 21 S.W.2d 767. (7) Taxicabs do represent legitimate class for legislative purposes. Secs. 5720 (d), 5721, R.S. 1939, reenacted Laws 1945, p. 1206; State v. Public Service Commission, 185 S.W.2d 347; Kansas City v. Sutton, 52 Mo.App. 398; Thompson v. St. Louis & S.F.R. Co., 334 Mo. 958, 69 S.W.2d 936. (8) Sec. 554 of the City Taxicab Ordinance, prohibiting taxicab drivers from possessing, carrying, or transporting intoxicants while on duty, being a part of the general ordinance licensing, regulating and controlling taxicabs in the city, does not conflict with the State Liquor Control Act. Nor is the city's authority to enact such an ordinance limited by the State Liquor Control Act. Sec. 6609, subj. XI, XVIII, XX, R.S. 1939; State v. Womach, 196 S.W.2d 809; McGill v. St. Joseph, 38 S.W.2d 725; Vest v. Kansas City, 194 S.W.2d 38; State v. White, 263 S.W. 192. (9) City ordinance violation prosecutions are governed by the rules of civil procedure on appeal. If the judgment of the trial court be erroneously entered, this court has the authority and duty to enter the judgment that the trial court ought to have given. City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935; City of Carthage v. Bird, 146 Mo.App. 325, 129 S.W. 1054; Genl. Code of Civil Procedure, Acts 1943, p. 395, Sec. 140 (c).

Ellison, J. Clark and Hyde, JJ., and Leedy, C.J., concur, Hyde, J., in separate opinion; Douglas, J., dissents in separate opinion; Tipton and Conkling, JJ., dissent and concur in dissenting opinion of Douglas, J.

OPINION

ELLISON

This case, founded on an ordinance of the City of Springfield, was argued and submitted in Division I of this court at the April session, where an opinion was prepared by Dalton, C. It failed of adoption, two of the judges in that Division having concurred and two dissented. For that reason it was transferred to the court en banc, and submitted at the present October session on the briefs, without oral argument. We have appellate jurisdiction under Art. V, Sec. 3, Const. Mo. 1945, because a constitutional question is involved, the appellate contending the ordinance violates Art. III, Sec. 40, par. 30, Const. Mo. 1945, in that it is a local and special law where a general law could have been made applicable. We set out the opinion below, with a few minor changes but without quotation marks, and have numbered the paragraphs for convenience in reference hereafter.

(1) Defendant was convicted of violating an ordinance of the City of Springfield prohibiting taxicab drivers from having in their possession, carrying or transporting in their taxicabs intoxicating beverages of any kind and a fine of $ 10 and costs was imposed. He has appealed. The errors assigned concern the sufficiency of the complaint and the evidence, the validity of the ordinance and its construction, if valid, and the admission of evidence.

(2) Appellant, a taxicab driver, was employed by a licensed taxicab company of the City of Springfield and was operating a licensed taxicab. On January 30, 1947, about 9:30 a.m., A. C. Boehm, the official Taxicab Inspector of the City of Springfield, saw appellant operating his taxicab and saw him park in front of the St. Louis Street Liquor Store in said city. Appellant got out and went into the store and, a little later, returned to the taxicab with a package which he laid on the seat beside him. Boehm testified: "I hurried up there, and he started his engine, ready to start out, and I stopped him and took the package and looked into it, and I found this bottle here." Appellant was alone in the taxicab. The bottle, a fifth of wine, was marked "Italian Swiss Colony, Type-California Port, Alcohol 20% by volume." Boehm took possession of it and it was offered in evidence at the trial.

(3) With reference to his arrest by Boehm, appellant testified: "He just got in and asked me where I was going, and I told him I was taking some wine to a sick lady, and he said, 'Is that all you got in your bottle?' and I said, 'Yes, sir' . . and he said, 'Where are you going with that wine?' and I said, '900-block on Hamilton.' And he said, 'No, you are not, you are going to the police station with me.'" Appellant admitted that he was on duty for the taxicab company by whom he was employed; and that he was making a special trip to get and deliver the wine. Appellant further offered evidence to the effect that the wine was intended for use as medicine by a sick person who had no one else to send for it.

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