City of Tarkio v. Loyd

• Decision Date: 10 February 1904
• Citation: 179 Mo. 600,78 S.W. 797
• Parties: CITY OF TARKIO v. LOYD.
• Court: Missouri Supreme Court

78 S.W. 797

179 Mo. 600

CITY OF TARKIO v. LOYD.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

COURTS — APPEAL — JURISDICTION — CONSTITUTIONAL QUESTION—STATE SUBDIVISION— CITY ORDINANCES—JUDICIAL NOTICE.

1. That a city was a party to a prosecution for the violation of an ordinance did not give the Supreme Court jurisdiction of an appeal, the city not being a political subdivision of the state within the constitutional provision relating to such jurisdiction.

2. On appeal from a judgment dismissing a prosecution under a city ordinance, the Supreme Court had no jurisdiction on the ground that a constitutional construction was involved, where it appeared that the motion to dismiss was based on several grounds in addition to the constitutional ground, and the record did not show the ground on which the motion was sustained.

3. Courts of general jurisdiction do not take judicial notice of city ordinances.

4. On appeal to the circuit court in a prosecution for a violation of a city ordinance an unauthenticated paper purporting to be a copy of an ordinance, among the papers filed by the police judge, was no basis for a constitutional construction of the ordinance.

Appeal from Circuit Court, Atchison County; Gallatin Craig, Judge.

W. R. Loyd was prosecuted for violating an ordinance of the city of Tarkio, and from a judgment of the circuit court on appeal dismissing the prosecution the city appeals. Transferred to the Kansas City Court of Appeals.

W. R. Littell, for appellant. James Moran, for respondent.

BRACE, P. J.

The defendant was tried, found guilty, and fined $25 in the police court of said city on the following complaint:

"Complaint. State of Missouri, County of Atchison, City of Tarkio, ss. In the Police Court of Tarkio, Missouri, before Thomas Weir, Police Judge, April 24, 1901. The City of Tarkio, Plaintiff, against W. R. Loyd, Defendant. W. R. Loyd, Defendant, to City of Tarkio, Mo.—Debtor. To the violation of the city ordinance requiring persons engaged in soliciting orders from house to house for the future delivery of goods, wares or merchandise without a city license,—one hundred dollars. In this to-wit: that the said W. R. Loyd, on or about the 22nd day of April, 1901, at the City of Tarkio, and within the corporate limits thereof, did then and there unlawfully engage in the business of soliciting orders, from house to house, for the future delivery of goods, wares, merchandise, without first obtaining a city license. All of which is contrary to said ordinance in such cases made and provided, and against the peace and dignity of the said city of

                Tarkio.                      F. M. Meek
                

"F. M. Meek makes oath and says that the facts and allegations contained in the foregoing complaint are true as therein stated. Subscribed and sworn to before me this 24th day of April, 1901.

                            "Thomas Weir, Police Judge."
                

Thereupon the defendant filed his affidavit for appeal to the circuit court of Atchison county, and a letter as follows:

                            "Tarkio, Mo., April 29, 1901
                

"Thomas Weir, Tarkio, Mo.—Dear Sir: Mr. C. F. Enright of the Mo. Valley Trust Co., St. Joseph, Mo., writes me he will arrange for a bond for $300 for one W. R. Loyd and I write this to say that I will stand good for said Loyd until you get a bond for the amount of $300, I will stand good for his appearance to the extent of $300 until you have a good bond for that amount.

                                       "R. M. Stevenson."
                

And the appeal was granted. Afterwards there was filed in the office of the clerk of said court a copy of the entries on the police judge's docket, with the affidavit for appeal, the complaint and letter aforesaid, and a paper purporting to be a copy of a section of an ordinance as follows:

"Copy of Section No. 142a of the Ordinance of the City of Tarkio. `Sec. 142a. Whosoever shall go from place to place for the purpose of soliciting or taking orders for the future sale or delivery of any goods, wares or merchandise, except books, charts, maps, and stationery, is hereby declared to be a mercantile agent. Provided that this ordinance shall not apply to owners or other persons who shall sell, solicit or take orders for the future delivery in wholesale lots to retail dealers, of any goods, wares or merchandise.'"

Afterwards, in the circuit court, the plaintiff filed a motion to dismiss the appeal on the ground that the defendant had failed to file an appeal bond as required by law, and the defendant filed a motion to dismiss the case, which, omitting caption, is as follows:

"Now at this day comes the above-named defendant and moves ...