State v. Binswanger

• Decision Date: 03 December 1906
• Citation: 98 S.W. 103,122 Mo. App. 78
• Parties: STATE v. BINSWANGER.
• Court: Missouri Court of Appeals

98 S.W. 103

122 Mo. App. 78

STATE v. BINSWANGER.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

1. INTOXICATING LIQUORS—DRAMSHOPS—POWER TO LICENSE—STATUTES.

Rev. St. 1899, § 5508, subd. 21, conferring on cities of the second class the "exclusive power to license, regulate or suppress dramshops," expressly excludes the general state law as to dramshops from operation within such cities.

2. SAME—REPEAL OF STATUTE.

Rev. St. 1899, § 5508, subd. 21, giving cities of the second class exclusive power to license, regulate, and suppress dramshops, was not repealed by the subsequent enactment of a general law governing the same subject.

3. STATUTES—GENERAL AND SPECIAL ACTS.

Rev. St. 1899, c. 91, art. 3, providing a charter for cities of the second class, was not a special enactment, but was a general law applicable to all cities the population of which brought them within the class specified.

4. SUNDAY—SALE OF GOODS—LIQUOR.

Rev. St. 1899, § 5508, subd. 21, gave cities of the second class exclusive power to license, regulate, and suppress dramshops. A city of that class passed an ordinance prohibiting the sale of intoxicating liquors on Sunday between 8:30 a. m. and 12:30 p. m. Held, that a saloon-keeper in such city who sold liquor on Sunday, but not within the hours specified, could not be convicted of "selling goods on Sunday," in violation of Rev. St. 1899, § 2243.

Appeal from Criminal Court, Buchanan County; John A. Rich, Special Judge.

Samuel Binswanger was convicted of selling goods on Sunday, and he appeals. Reversed. Defendant discharged.

Culver & Phillips, for appellant. John D. McNeely, for the State.

ELLISON, J.

The defendant was prosecuted by information filed by the prosecuting attorney of Buchanan county, for selling and retailing fermented or distilled liquor on Sunday contrary to the provisions of section 2243, Rev. St. 1899, in relation to "selling goods on Sunday." He was convicted in the trial court, and fined $25.

The cause was submitted to the court, without a jury, on a statement of facts wherein it was agreed that defendant was regularly licensed as a dramshop keeper by the city of St. Joseph, a city within Buchanan county; that he sold a pint of whisky and a glass of beer at his dramshop in such city on Sunday, the 8th of July, 1906; but that, prior to such sale, the city council of St. Joseph had duly ordained a general ordinance concerning dramshop keepers, which only prohibited the sale of intoxicating liquor between the hours of 8:30 a. m. and 12:30 p. m. on Sunday; and that the sale made by defendant was not within that time. The city of St. Joseph is a city of the second class, and its charter is found in chapter 91, art. 3, Rev. St. 1899. By the express terms of section 5508, subd. 21, the Legislature gave to such cities the exclusive power to license, regulate, or suppress dramshops. In State v. Kessells (not yet officially reported) 96 S. W. 494, we decided that such charter expressly excluded the general state law as to dramshops from operation within the limits of such cities. We called attention, and gave effect, to the well-recognized rule of law that a particular provision, such as contained in subdivision 21 of section 5508 of the charter of cities of the second class, would overcome a general law on the same subject; that, in effect, the special provision operated as an exception to the general law; and also that an enactment, subsequently, of a general law did not have the effect to repeal a prior special provision. In addition to the authority of the Missouri Supreme Court for those statements of rules of construction, we refer to 1 Dillon on Municipal Corp. §§ 87, 88, where the author discusses municipal charters in their relation to the general state law. And furthermore it appears that the word "exclusive" has been inserted in the charter as an amendment. It is getting very far beyond the bounds of reason to say, in the light of that fact, that the Legislature did not mean that the control of the council of cities of the second class should be an exclusive control. In the charter of such cities in 1879, such cities did not...