State v. McClary
| Decision Date | 07 February 1966 |
| Docket Number | No. 24295,24295 |
| Citation | 399 S.W.2d 597 |
| Parties | STATE of Missouri, Respondent, v. Robert McCLARY, Appellant. |
| Court | Missouri Court of Appeals |
Blackford & Wilhelmsen, J. William Blackford, Kansas City, for appellant.
Gerald Kiser, Pros. Atty., Liberty, for respondent.
This is a prosecution for a misdemeanor under Sections 64.460-64.487 V.A.M.S., the County Option Dumping Ground Law. 1 The charge was that the defendant, on April 22, 1964, in Clay County, 'willfully and unlawfully, did operate a disposal area for garbage, rubbish and refuse, without making application for, and obtaining a license for a dumping ground as provided for in Sections 64.460 to 64.487.' The state and defendant stipulated that 'Clay County effectively established its County, Option Dumping Ground Law on March 21, 1960,' Section 64.483, and was operating under this law at all times relevant to this controversy. The defendant was found guilty, in the precise language of the charge, of 'operating a disposal area for garbage, rubbish and refuse, without making application for, and obtaining a license for a dumping ground.' He appeals and asserts that the information does not charge him with any offense, since Sections 64.460-64.487, as he says, do not prohibit the operation of a dumping or disposal ground or area without first applying for and obtaining a license.
Invoking the doctrine that criminal statutes must be strictly construed, he asserts that its application to the County Option Dumping Ground Law, hereafter called the dumping ground law, demonstrates that he has not violated any of its provisions. Criminal statutes must, indeed, be strictly construed, strictly against the state and liberally in favor of the accused. City of St. Louis v. Triangle Fuel Co., Mo.App., 193 S.W.2d 914, 915; State v. Chadeayne, Mo., 323 S.W.2d 680, 685. No person can be made subject to a criminal statute by guesswork or mere implication. State v. Taylor, 345 Mo. 325, 133 S.W.2d 336, 341. 'A criminal statute is not to be held to include offenses or persons other than those which are clearly described and provided for both within the spirit and letter of the statute, and, if there is a fair doubt as to whether the act charged and proved is embraced within the prohibition, that doubt will be resolved in favor of the accused.' State v. Hall, Mo.App., 351 S.W.2d 460, 463; State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 471.
Thus a penal statute creating a new offense must be sufficiently clear to inform those sought to be subjected to it just what conduct on their part will render them liable to its penalties. Ex parte Taft, 284 Mo. 531, 544, 225 S.W. 457, 461; Ex parte Hunn, 357 Mo. 256, 207 S.W.2d 468, 470.
State v. Reid, 125 Mo. 43, 28 S.W. 172, 173. These rules must prevail even though courts may think that the legislature ought to have made a law more comprehensive and that by failing to do so it failed to accomplish a salutary purpose. 82 C.J.S. Statutes Sec. 389, p. 928; 50 Am.Jur., Statutes, Sec. 388, p. 408; 26 Mo.Digest, Statutes, k241(1); 9 Mo.Digest, Criminal Law, k13.
The defendant contends that there is only one section in the entire dumping ground law which describes a punishable offense. This is Section 64.463 which reads:
'No person shall dispose of any ashes, garbage, rubbish or refuse at any place except a disposal area licensed as provided in sections 64.460 to 64.487.'
He then argues that the state cannot place its reliance on this section because he was not charged with disposing of anything in an unlicensed disposal area. In this argument he is correct. He was charged with operating a disposal area without first making application for and obtaining a license to do so. Accordingly, the state's case must stand or fall on the remainder of the dumping ground law and specifically on a determination of the question whether or not any provision of this law makes it a punishable offense to operate a disposal area without first applying for and obtaining a license.
Deciding this question we examine the entire dumping ground law to determine from its language whether or not it prohibits the conduct with which the defendant is charged and makes such conduct an offense. In addition to Section 64.463 above quoted, the law provides:
The law provides also that the county court shall notify the state division of health of the application for a license and that the division of health shall inspect the proposed site and determine if the proposed operation complies with the dumping ground law and the rules and regulations adopted pursuant thereto. If the division of health reports favorably on the application and the county court finds that the applicant is a responsible and suitable person, then the county court must issue a license to the applicant authorizing him to operate a disposal area on the proposed site for one year. All licenses expire one year after issuance but may be renewed upon payment of an annual fee of twenty-five dollars. The division of health is required to prepare and publish rules and regulations which shall contain sanitary standards for disposal areas and to inspect all licensed disposal areas. The county court may revoke any license after reasonable notice and hearing if it finds that the disposal area is not operated in a sanitary manner. Sections 64.470, 64.473 and 64.477. Section 64.487 provides: 'Any person violating Sections 64.460 to 64.487 shall be guilty of a misdemeanor.'
Accordingly, we see that if the defendant has been charged with an offense it must be by reason of the provisions of Sections 64.467 and 64.487, or a combination of those sections with other provisions of the dumping ground law. Yet our examination of this law convinces us that nowhere within the entirety of its provisions does it expressly prescribe, or clearly, plainly and necessarily imply, in the terms in which criminal laws must be written, any prohibition against the...
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...read them, and know whether or not he was violating (the) law.' Ex parte Taft, 284 Mo. 531, 544, 225 S.W. 457, 461(10); State v. McClary, Mo.App., 399 S.W.2d 597, 599(5). A penal statute is not to be held to include offenses or persons other than those which are clearly described and provid......
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State v. Lovell
...statute denies due process of law and is unconstitutional * * *.' Suffice to say that none of appellant's authorities, State v. McClary, 399 S.W.2d 597 (Mo.App.1966), State v. Wilbur, 462 S.W.2d 653 (Mo.1971), State v. Chadeayne, 323 S.W.2d 680 (Mo. banc 1959), State v. Taylor, 345 Mo. 325,......