City of St. Louis v. Tielkemeyer

• Decision Date: 01 March 1910
• Parties: CITY OF ST. LOUIS v. TIELKEMEYER.
• Court: Missouri Supreme Court

125 S.W. 1123

226 Mo. 130

CITY OF ST. LOUIS v. TIELKEMEYER.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. INTOXICATING LIQUORS (§ 214) — WRONGFUL SALE — CITY ORDINANCE — INFORMATION — "DRAMSHOP KEEPER."

St. Louis City Ordinances, § 2030, defines a "dramshop keeper" to be a person permitted by law or ordinance to sell intoxicating liquors in any quantity less than a gallon, and declares that no person or copartnership of persons or corporation shall, within the city, directly or indirectly, in person or by another, sell, barter, or deliver, for or on his or their account, any intoxicating liquors, etc. Held, that an information for violating such ordinance was not defective for failure to allege whether defendant was acting in his own behalf or as agent for another, since, as it charged that defendant sold the liquor himself, it was immaterial whether he acted for himself or another.

2. INTOXICATING LIQUORS (§ 221) — WRONGFUL SALE — CITY ORDINANCE — INFORMATION.

St. Louis City Ordinances, § 2030, prohibits the sale of liquor within the city in quantities less than a gallon without a city license, and section 2034 declares that the article shall not be construed to apply to any sale of intoxicating liquors by any person under authority of an ordinance regulating merchants' licenses. Held, that an information for violating section 2030 was not fatally defective for failure to allege that defendant was not acting at the time under a merchant's license.

3. INTOXICATING LIQUORS (§ 11) — REGULATION — POWER OF STATE.

Since the state has the sovereign power to regulate the sale of intoxicating liquors, a city ordinance, though passed pursuant to legislative authority, authorizing the city to license, tax, and regulate saloons, beerhouses, tippling-houses, dramshops, and gift enterprises (St. Louis City Charter, art. 3, § 25, cl. 5 [Ann. St. 1906, p. 4812]), is invalid if it is in conflict with the state law on the same subject.

4. INTOXICATING LIQUORS (§ 11) — STATE LAW — CITY ORDINANCE — "DRAMSHOP KEEPER" — CONFLICT.

Rev. St. 1899, § 2990 (Ann. St. 1906, p. 1714), defines a dramshop keeper as a person permitted by law, being licensed according to the provisions of the charter, to sell intoxicating liquors, in any quantity, either at retail or in the original package, not exceeding 10 gallons, and section 2991 provides that no person shall, directly or indirectly, sell intoxicating liquors in any quantity less than three gallons, either at retail or in the original package, without taking out a license as a dramshop keeper. St. Louis City Ordinances, § 2030, defines a dramshop keeper as a person permitted by law or ordinance to sell intoxicating liquors in any quantity less than one gallon, and forbids any one selling intoxicating liquors in less quantities than a gallon without a license under the ordinance. Held, that the words "dramshop keeper" have a wider significance than that given them by the statute, and that the words should be construed as defined in the statute and the ordinance, respectively, for the particular provisions of each; and hence, there being nothing in the ordinance which impinges on any right of a dramshop keeper under the statute, the ordinance is not in conflict with the statute.

5. INTOXICATING LIQUORS (§ 11) — REGULATION — LICENSES — CITY ORDINANCES — STATE LAW.

St. Louis City Ordinances, § 2030, provides that no person shall sell intoxicating liquors in any quantity less than a gallon without a license first obtained therefor, according to the provisions of the article as a keeper of a dramshop, and section 2031 provides for the issuance of a license by the city license commissioner. Held that, since the office of city license commissioner was abolished by Rev. St. 1899, §§ 3019-3026 (Ann. St. 1906, pp. 1730-1733), creating the office of excise commissioner for cities of 300,000 or over, to which officer is given the exclusive authority to grant dramshop licenses, and prescribing the process of obtaining the same, which is different from that prescribed by the ordinance, the ordinance was superseded, so that thereafter a person could not be guilty of selling liquor in the city without a license obtained pursuant to the ordinance.

Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Henry Tielkemeyer was convicted of selling liquor without a license in the city of St. Louis, and he appeals. Reversed, and prisoner discharged.

Charles H. Brock and Simon S. Bass, for appellant. L. E. Walther and B. H. Charles, for respondent.

VALLIANT, J.

Appellant was convicted in the second district police court of St. Louis of selling intoxicating liquors without a license, in violation of a city ordinance, and appealed from that judgment to the St. Louis court of criminal correction, where he was again tried and convicted, and sentenced to pay a fine of $50, from which judgment he has taken this appeal.

The testimony at the trial showed that appellant had committed the act specified in the information. There was no testimony to the contrary, nor did he claim to have had a license. There was at first some indication of a purpose on the part of appellant to construct a defense on the theory that he was acting as agent or officer of a social club dispensing its own liquors to its own members; but, if he ever had such a purpose, he abandoned it at the trial, for he offered no evidence to sustain it. He introduced in evidence the charter of what purported to be a social club, called the National Athletic Club, but offered no evidence to show the real character of the club or his connection with it. There is no such defense now claimed. The only grounds relied on by appellant for a reversal of the judgment are the alleged insufficiency of the information to state facts sufficient to constitute a charge of violation of the city ordinance, and denial of the validity of the ordinance itself. Points on those grounds were duly made in the trial court, and when ruled against appellant, his exceptions were preserved in due form.

The city ordinance on which this pròsecution is based, or so much thereof as is necessary to be considered in this case, is as follows:

"Sec. 2030. Dramshop Keeper Defined. — A dramshop keeper is a person permitted by law or ordinance to sell intoxicating liquors in any quantity less than one gallon. No person or copartnership of persons or corporation shall, in this city, directly or indirectly, in person or by another, sell, barter or deliver, for or on his or their account, any intoxicating liquors in quantities less than one gallon, without a license first obtained therefor, according to the provisions of this article, as a keeper of a dramshop. * * *"

"Sec. 2034. Merchants Exempt from Article. — This article shall not be construed to apply to any sale of intoxicating liquors by any person under authority of ordinance regulating merchants' licenses.

"Sec. 2035. Amount of License. — For a license as a dramshop keeper there shall be paid the sum of two hundred and fifty dollars for city purposes (and twenty-five dollars for State purposes,) and any such license shall authorize the business therein designated to be carried on at one place only, and such license shall remain in force for the period of six months from its date; provided, that the license commissioner may, with the approval of the comptroller, issue any such license for a different period than six months, if necessary, in order that the state and city licenses to the same party may expire at the same time and at the date fixed by this article. No fee shall be charged by the license commissioner for administering oaths or taking affidavits. * * *"

"Sec. 2044. Penalty. — Whoever shall violate any of the provisions of this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum of not less than fifty nor more than three hundred dollars.

"Sec. 2045. Duty of License Commissioner to Enforce. — It shall be the special duty of the license commissioner to see that the provisions of the article are enforced."

Other sections of the ordinance prescribe how licenses are to be applied for; the process through which the applications are to go; the place where the licensee is to conduct his business; that the license shall not be transferable; that no license shall issue to conduct a dramshop in certain places; how and for what causes licenses may be revoked, etc. — which it is not necessary to set forth in full here.

The information in question is as follows: "State of Missouri, City of St. Louis, ss. — City of St. Louis, February 18, A. D. 1906. Henry Tielkemeyer to the City of St. Louis, Dr. To $300 for the violation of an ordinance of said city, entitled `An ordinance in revision of the General Ordinances of the City of St. Louis,' being Ordinance No. 19,991, c. 31, art. 4, §§ 2030-2044, approved April 3, 1900, in this, to wit: In the city of St. Louis, and state of Missouri, on the 18th day of February, 1906, said Henry Tielkemeyer did then and there sell intoxicating liquors in quantity less than one gallon, without first having obtained a license so to do, to wit, second floor 1312 Franklin avenue, contrary to the ordinance in such cases made and provided."

1. Of that information the appellant says it is defective because, he says, it does not state the nature of the charges against him in language sufficiently specific to bar another prosecution for the same act; that is, whereas the ordinance prohibits any person from, directly or indirectly, in person or by another, selling, etc., for or on his or their account, any intoxicating liquors, etc., yet the information does not say whether this defendant in doing the act specified was acting in his own behalf or as agent for another. So much of the language of the ordinance as refers to the doing of the forbidden act by an agent was designed to reach a person, firm, or...