State v. Kessells

• Citation: 120 Mo. App. 233,96 S.W. 494
• Parties: STATE v. KESSELLS.
• Decision Date: 02 July 1906
• Court: Court of Appeal of Missouri (US)

96 S.W. 494

120 Mo. App. 233

STATE v. KESSELLS.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

Rehearing Denied October 1, 1906.

1. INTOXICATING LIQUORS — REGULATION — STATUTES.

Rev. St. 1899, § 5508, provides that the mayor and common council of cities of the second class shall have power within the city, by ordinance not inconsistent with the Constitution or any law of the state (subdivision 17), to license, tax, and regulate saloons, tippling houses, and dramshops, and subdivision 21 provides that such cities are given exclusive power to regulate, license, tax, and suppress dramshops, and that all criminal courts shall have original and concurrent jurisdiction for the trial of offenses arising out of any violation of the laws in relation to dramshops. Held, that under such section a city of the second class had power to adopt an ordinance authorizing the sale of liquors within its limits on Sunday, and that such ordinance operated to suspend the application to such city of Rev. St. 1899, § 3011, making it a misdemeanor so to do.

2. SAME—REPEAL.

The exclusive authority granted to cities of the second class by Rev. St. 1899, § 5508, to pass an ordinance authorizing the sale of liquors on Sunday, was not abrogated by the general dramshop law of 1891 (Laws 1891, p. 128), subsequently enacted, prohibiting such sale and repealing all inconsistent acts, nor by Laws 1903, p. 169, amending Rev. St. 1899, § 2997, and providing that in all cities of the second class no license shall be granted unless the petition therefor shall have indorsed thereon the approval of the mayor and president of the board of police commissioners of such city.

Appeal from Criminal Court, Buchanan County; B. J. Casteel, Judge.

William T. Kessells was convicted of keeping open his dramshop and selling intoxicating liquors therein on Sunday, and he appeals. Reversed. Defendant discharged.

Culver & Phillip and Brewster, Ferrell & Mayer, for appellant. John D. McNeeley, for the State.

ELLISON, J.

The defendant was convicted in the criminal court of Buchanan county of keeping open his dramshop and selling intoxicating liquors therein on Sunday. The case shows defendant's dramshop to be located within the city of St. Joseph, a city of the second class in this state. By the law of the state (section 3011, Rev. St. 1899), under which this prosecution was begun, it was misdemeanor so to do. By an ordinance of the city it was not a misdemeanor. If the state law applies, defendant is guilty. If the ordinance applies, he is not.

It is provided by the charter of cities of the second class (section 5508, Rev. St. 1899) that "the mayor and common council shall have power within the city, by ordinance, not inconsistent with the Constitution or any law of this state, or of this article," to do a great many things for the good order, regulation, and government of such cities. These things are set out in great number and particularity. The section is lengthy, being divided into 43 subdivisions. Subdivision 17 is a lengthy subdivision and gives authority "to license, tax and regulate" merchants, hotels, drumers, insurance agents, banks, livery stables, omnibuses, drays and a great variety of other callings and things. The subdivision then proceeds to authorize such cities "to license, regulate, tax or suppress * * * saloons, tippling houses and dramshops." Passing to subdivision 21, such cities are given "exclusive power to restrain, regulate, license, tax or suppress dramshops. All criminal courts shall have original and concurrent jurisdiction for the trial of offenses arising out of any violation of the laws in relation to dramshops." The Supreme Court of the state has, from an early day, recognized the right and power of the Legislature to surrender control of misdemeanors to municipalities, and the Legislature has from time to time exercised that right. But when the right is not clearly surrendered to the municipality, each jurisdiction may have and enforce laws concurrently. Harrison v. State, 9 Mo. 530; Baldwin v. Green, 10 Mo. 410, State v. Gordon, 60 Mo. 383; State v. Wister, 62 Mo. 592; State v. Harper, 58 Mo. 530; State v. Binder, 38 Mo. 450; State v. Vic. De Bar, 58 Mo. 396; State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471. The court of appeals has followed these cases. State v. Willard, 39 Mo. App. 251; Kerney v. Barber Co., 86 Mo. App. 573. Of these cases, it was held in State v. Gordon that the city of Liberty, under its charter, had exclusive jurisdiction of the misdemeanor of disturbing the peace of a family; in State v. Binder, that fermented liquors might be sold on Sunday in St. Louis, though prohibited by state law. In State v. Clarke, the court held that a charter power vested in the city of St. Louis to regulate bawdy houses repealed, in the city, the state law prohibiting them. And that case was affirmed in State v. Vic. De Bar, and is cited with approval in State v. Thompson, 160 Mo. 333, 60 S. W. 1077, 54 L. R. A. 950, 83 Am. St. Rep. 468, and City of Kansas ex rel. Blunb v. O'Connell, 99 Mo. 357, 12 S. W. 791. So it will be seen from the foregoing that if it be true that the Legislature has surrendered to the city of St. Joseph, as a city of the second class, the exclusive control and regulation of saloons within its limits, such action is not without precedent.

The question recurs to an interpretation of the charter above quoted. Subdivision 21 uses about as comprehensive a word as could be found when it reads that such cities should have "exclusive power to restrain, regulate, license, tax or suppress dramshops." There was at the time of the adoption of the charter, and is now, other concurrent power over such matter, and so, when the Legislature said that the city power should be exclusive, it excluded that other concurrent power. The last sentence of subdivision 21, that "all criminal courts shall have original and concurrent jurisdiction for the trial of offenses arising out of any violation of the laws in relation to dramshops," in no way refers to, qualifies, or affects the power granted in the first. Without that sentence, the criminal court of Buchanan county would only have had appellate jurisdiction of violations of city ordinances in relation to dramshops. With that sentence, the criminal court has original, concurrent jurisdiction with the city court, and by force of other law, it has appellate jurisdiction of cases which may be instituted in the city court. We must interpret the statute according to its plain words, and in so doing we cannot find any ground for saying that the act of conferring jurisdiction on a state court to enforce a city ordinance took from the city a clearly conferred exclusive power to ordain such ordinance. True, this statute, in the respect last mentioned, like many others, is made to appear inharmonious by other apparently inconsistent provisions. But it is only in appearance. It is enacted in section 5542 that "the judge of the police court shall have exclusive jurisdiction over al cases arising under any ordinance of the city, except suits brought for the collection of taxes due the city. Appeals in all cases tried before him as judge of the police court shall be taken to the court of record having criminal jurisdiction in the county where such city is located." Reading the two statutes together, the effect of subdivision 21 is to except cases arising under dramshop ordinances from the exclusive jurisdiction of the police judge and make it concurrent with the criminal court. But, as stated at the outset, the charter of cities of the second class only authorizes such cities to ordain ordinances which are not inconsistent with the state law. And the state law absolutely prohibits a dramshop keeper from selling liquor on Sunday. The ordinance of St. Joseph, in permitting sales on Sunday, is undoubtedly inconsistent with such state law. But, notwithstanding this prohibition in the part of the charter to which we have just referred, the other portion we have discussed, embodied in subdivision 21, is a particular provision in terms giving exclusive authority over the special subject of dramshops. Such particular provision, according to a fundamental rule of construction, must prevail over the general provision, In State v. Binder, heretofore cited, the general state law disallowed the sale of beer on Sunday, but the special law of St. Louis, authorized by the state, permitted such sale and the latter was held to prevail. So the charter of the city of St. Louis contained a like provision to that now being considered. But another part of the charter specially authorized the city by ordinance to permit bawdy houses, under certain regulations, whereas the state law condemned them; yet the Supreme Court, in two cases, held "that a particular specified intent on the part of the Legislature overrules a general intent incompatible with the specific one." State v. Clarke and State v. Vic. De Bar, supra.

Nothing in the case of St. Louis v. Meyer, 185 Mo. 583, 84 S. W. 914, affects the views we have herein stated. In the Meyer Case the city of St. Louis, under one of its ordinances, attempted to punish Meyer, who was a farmer in St. Louis county, for peddling farm, dairy, and garden products in the city without a license. The general state law (section 8861, Rev. St. 1899) exempted such person from the definition of a peddler. It was held that the city ordinance, as thus attempted to be enforced, was contrary to the state law and therefore of no effect; and that the ordinances and the charter of St. Louis must always be and remain in harmony with the state law. We have already cited cases deciding that notwithstanding provisions in an early charter of St. Louis prohibited the city from passing ordinances inconsistent with the general law of the state, yet ordinances recognizing bawdy houses and permitting the sale of fermented liquor on Sunday were declared to be valid. Those cases and...