City of Warrensburg v. McHugh

• Citation: 27 S.W. 523,122 Mo. 649
• Parties: City of Warrensburg v. McHugh
• Decision Date: 12 June 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 523

122 Mo. 649

City of Warrensburg v. McHugh

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from Johnson Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

S. T White for appellant.

(1) The local option law is unconstitutional. Barto v Himrod, 59 Am. Dec. 506; Santo v. State, 62 Am Dec. 487; Lammert v. Lidwell, 21 Am. Rep. 411; Cooley Const. Lim. [3 Ed.], pp. 120, et seq.; see page 128, of our Constitution of 1865; Sherwood's dissenting opinion in State ex rel. v. Pond, 93 Mo. 606. (2) The city had no authority to enforce the ordinance under which appellant was convicted. The only authority given the city is by its charter as a city of the third class. Section 1506, Revised Statutes, specifies what jurisdiction it has over the sale of liquors. It can "license and regulate dramshops" and can "suppress tippling houses" and has no other authority over the sale of intoxicating liquors. Its powers to impose fines is limited to $ 100 as the maximum. R. S., sec. 1526. The ordinance under which appellant was convicted was an attempt to go beyond these limits and punish the appellant for doing an act over which it has no jurisdiction and by a fine it had no authority to impose. Dillon, Mun. Corp., secs. 89, 368, 403; Cooley, Const. Lim. [3 Ed.], 194, 195, 196; St. Louis v. Bell Telephone Co., 96 Mo. 623; Leach v. Cowgill, 60 Mo. 316; Saxion v. Beach, 50 Mo. 488; Knox City v. Thompson, 19 Mo.App. 523.

Fulkerson and R. M. Robertson for respondent.

(1) The constitutionality of the local option law is settled. State ex rel. v. Pond, 93 Mo. 606; Ex parte Swann, 96 Mo. 44; State v. Dillard Moore, 107 Mo. 78. (2) It is to be presumed that the mayor and board of alderman took all the necessary steps required by law relative to the adoption of the local option law. State v. Semcy, 39 Mo.App. 393-401, and cases cited; State v. Prather, 41 Mo.App. 455; French v. Fyan, 93 Mo. 169; State ex rel. v. Weatherby, 45 Mo. 17; State v. Hutton, 39 Mo.App. 410; State v. Weeks, 38 Mo.App. 566; State v. Baker, 36 Mo.App. 58; State v. Evans, 83 Mo. 319; State v. Dugan, 110 Mo. 138; State v. Young, 84 Mo. 90. (3) The defendant in this case was subject to prosecution by either the state of Missouri or the city of Warrensburg, as the offense is a misdemeanor under both the statutes of the state and the ordinances of the city. Dillon's Mun. Corp., sec. 367, and cases cited; Mayor v. Allain, 14 Ala. 400. (4) The city of Warrensburg under its charter has the power to impose the punishment as provided in said ordinance, under which defendant was convicted. The very section of the statute cited by defendant in the closing sentence says: "Provided, that such city shall have the power, in any case wherein the penalty for an offense is fixed by any statute, to affix the same penalty by ordinance, and no other, for the punishment of such offense. R. S., sec. 1526, t. p. 436; R. S., sec. 1902. (5) The punishment, as provided in section 2, of the ordinance in question in this case, is the same as section 4606, Revised Statutes, of the "local option law," and could be no other.

OPINION

Sherwood, J.

Prosecution by the plaintiff city against defendant for violation of an ordinance based upon, and intended to enforce the "local option law," and known as "An Ordinance in relation to the sale of intoxicating liquor." On trial defendant was convicted in the recorder's court, and afterwards in the criminal court, in which latter court his punishment was assessed at a fine of $ 500.

The information filed on behalf of the city, is the following: "A. M. Geer, city attorney within and for the city of Warrensburg aforesaid, in the state of Missouri, informs the court that James McHugh on the seventh day of March, 1890, at the city of Warrensburg did then and there unlawfully and willfully sell and barter to one Charles Kuntz, intoxicating liquors within the limits of said city in a quantity as follows, towit, five gallons of beer of the value of $ 2.75, and that said James McHugh was not at said time a licensed druggist and that said liquor was not sold for mechanical, medicinal or scientific purposes, in violation of an ordinance of said city enforcing the local option law, entitled, "An ordinance in relation to the sale of intoxicating liquors," passed and approved March 4, 1890, and against the ordinances in such case provided, and the peace and dignity of the city."

Defendant appeals from that conviction and the judgment thereon.

We will not enter on any discussion of the constitutionality of the "local option law." Under the ruling in State v. Dugan, 110 Mo. 138, 19 S.W. 195, the record evidence of the acts and doings of the "board of aldermen" and the mayor of the city of Warrensburg, must be regarded as establishing prima facie, at least, the adoption of the "local option law," in the plaintiff city, and that all necessary steps preliminary thereto were taken; and besides that there was competent evidence, under the ruling aforesaid, that all proper antecedent steps were taken, necessary to the adoption of the law in question.

The claim is made that the ordinance enacted to enforce that law is ultra vires the city. Section 1506, Revised Statutes 1889, relating to cities of the third class, gives such cities power to collect a license tax on "druggists, dramshops, saloons, liquor sellers * * and to license, tax, regulate or suppress * * * tippling houses," etc.

It is quite clear that "tippling houses" may be suppressed by ordinance, for this power is given in express terms. But we think the power to punish "druggists" or "liquor sellers" (for these are frequently convertible terms) is necessarily implied, and is a necessary adjunct of the power...