State v. Cowan

• Decision Date: 31 January 1860
• Citation: 29 Mo. 330
• Parties: THE STATE, Appellant, v. COWAN, Respondent.
• Court: Missouri Supreme Court

29 Mo. 330

THE STATE, Appellant,

v.COWAN, Respondent.

Supreme Court of Missouri.

January Term, 1860.

1. The general assembly has power under the constitution to create municipal corporations and to confer upon them the authority to pass police regulations and to punish persons for their violation.

2. If a municipal corporation created by the law of this state should take cognizance of an act made an offence by its ordinances and punish it, the person thus punished can not be subjected again, under the general law of the state, to punishment for the same act or offence.

3. The general assembly has power under the constitution to enact that, for offences of the grade of misdemeanors, persons may be proceeded against criminally either by indictment or by information.

4. Although by the general law of the state persons charged with certain offences of the grade of misdemeanors must be proceeded against criminally by indictment, yet the general assembly may grant to municipal corporations the power to ordain that persons charged with such offences may be proceeded against criminally by information. The general state law and the municipal ordinance may have a concurrent operation.

Appeal from Polk Circuit Court.

This was an indictment founded upon the fifty-fourth section of the eighth article of the act concerning crimes and punishments. The sixth and seventh sections of the act incorporating the town of Bolivar are as follows: “Sec. 6. The board of trustees shall have power to pass by-laws and ordinances, to open and form public squares, avenues, drains and sewers, and to keep the same clean and in order; to provide for the general health of its inhabitants; to restrain and prohibit dram-shops, tippling houses, gambling and gaming houses, bawdy houses and houses of ill-fame, and other disorderly houses, within the limits of said town; to tax and license circus shows, theatricals and other amusements; to restrain and prevent the meeting of slaves; to establish night watches and patrols; to prevent the firing of fire-arms and other explosive compounds, and to prohibit furious and other unnecessary riding of any horse or other animal in said town, or such part thereof as they may think proper; to impose fines and appropriate fines, forfeitures and penalties for breach of their ordinances, for the regulation of the police of said town as they shall deem necessary, not repugnant or contrary to the laws of the land. Sec. 7. The trustees shall have power to pass all ordinances which may be necessary to carry any provision of this act into effect, and also to pass any ordinance usual or necessary for the well-being of the town.” (Sess. Acts, 1855, Adj. Sess. p. 286.)

The following is the ordinance set forth in the plea in bar: “Ordinance 14. Be it ordained by the board of trustees of the town of Bolivar, If any person or persons shall ride furiously through the streets, alleys, or around the public square by galloping or running any horse or other animal, or shall drive any vehicle in a furious or unbecoming manner within the limits of the town of Bolivar, shall be deemed guilty of a violation of this ordinance, and such person or persons shall be fined in a sum of not less than two nor more than five dollars, or be imprisoned not more than five days, or by both such fine and imprisonment, together with costs for each offence.”

Knott, (attorney general,) for the State.

I. This cause was submitted to the court upon a brief filed in behalf of the State at a former term by Attorney General Ewing, in which it was contended that the demurrer was improperly overruled; that the plea in bar was defective; that it did not show that the town authorities had jurisdiction; that no affidavit charging an offence, nor any judgment or proceedings of the justice are set out in the plea; no organization of the town authorities is averred. The powers conferred by the act of incorporation in relation to police are subordinate to the power of the legislature over the same subject, and that power has been exercised. The act of incorporation confers no exclusive jurisdiction on the town authorities over the offence for which defendant was indicted. (Sess. Acts, 1855, Adj. Sess. 286; Harmon v. State, 11 Mo. 527; St. Louis v. Bentz, 11 Mo. 61; Baldwin v. Green, 10 Mo. 410; City of St. Louis v. Cafferatta, 24 Mo. 96; 8 Ala. 516; 6 Ala. 902; 1 Wend. 261; 12 B. Monr. 25; 14 Ala. 403.)SCOTT, Judge, delivered the opinion of the court.

In the year 1855 the town of Bolivar, in Polk county, was incorporated among others, with the power to regulate its police. In pursuance to this authority the town prohibited, by an ordinance, furious riding through the streets, alleys, or around the public square, under a penalty of not less than two, nor more than five dollars, or imprisonment for not more than three days, or by both such fine and imprisonment. The defendant Cowan violated this ordinance, and was fined five dollars therefor, which he paid and was discharged. He was afterwards indicted by the grand jury of Polk county for the same act under the law of the state prohibiting the running of horses at great speed upon the public roads and highways. To this indictment he pleaded in abatement his former conviction under the ordinance above mentioned. To this plea there was a demurrer, and the demurrer being overruled, the State appealed.

We do not see how any question can arise in this case as to the jurisdiction of the corporate authorities over this offence, if it is competent to the legislature to create municipal corporations and to confer on them the power by ordinance to regulate their police. Surely the right to exercise such a power can not be seriously questioned. If this corporation thus established by law takes cognizance of an act made an offence by its ordinances, and punishes it, the person thus punished can not be subjected to punishment again for the same act or offence. The constitution forbids that a person shall be twice punished for the same offence. To hold that a party can be prosecuted for an act under the state laws after he has been...