The City of Topeka v. Crawford

• Decision Date: 03 July 1908
• Docket Number: 15,900
• Citation: 78 Kan. 583,96 P. 862
• Parties: THE CITY OF TOPEKA v. ROY CRAWFORD
• Court: Kansas Supreme Court

96 P. 862

78 Kan. 583

THE CITY OF TOPEKA v. ROY CRAWFORD

No. 15,900

Supreme Court of Kansas

July 3, 1908

Decided July, 1908.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES AND CITY OFFICERS--Ordinances--Publication. Where the revised ordinances of a city of the first class are published in a book by authority of the city, an ordinance embraced in such book in which it is provided that it shall take effect upon such publication is sufficiently published and will take effect accordingly, if more than fifty copies of such book are issued.

2. CRIMINAL LAW--Complaint--Date of Alleged Offense. A complaint for the violation of an ordinance relating to labor on Sunday which alleges that the offense was committed on the day of October, 1907, on the first day of the week, commonly called Sunday, is sufficiently specific as to time.

3. CRIMINAL LAW--Violation of Sunday Labor Law. To keep open, manage and superintend a theater and sell tickets therein on Sunday is labor within the meaning of an ordinance which provides that "every person who shall either labor himself, or compel his apprentice, servant or any other person in his charge or control to labor or perform any work other than the household offices of daily necessity, or other work of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor."

F. G. Drenning, city attorney, and W. C. Ralston, assistant city attorney, for appellee.

Z. T. Hazen, and R. H. Gaw, for appellant.

OPINION

BENSON, J.:

The defendant was convicted under a city ordinance which provides:

"Every person who shall either labor himself, or compel his apprentice, servant or any other person in his charge or control to labor or perform any work other than the household offices of daily necessity, or other work of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and on conviction thereof fined in any sum not less than two dollars nor more than twenty-five dollars for each offense; provided, this section shall not extend to any person who is a member of any religious society by whom any other than the first day of the week is observed as the Sabbath, so that he observes such Sabbath."

The complaint was as follows:

"That on the day of October, 1907, in the city of Topeka, in the county of Shawnee and state of Kansas, one Roy Crawford did wilfully, wrongfully, maliciously and unlawfully open, superintend and manage a public theater, and give dramas, comedies, tragedies, burlesque, minstrel and vaudeville shows and various other theatrical entertainments and performances, and did sell tickets of admission therefor varying in price from ten cents to one dollar and fifty cents, and, as such manager of such public theater, did compel his servants and employees under his charge and control, to wit, stage-carpenters, stage-hands, janitors, ushers and ticket sellers, to labor and to perform work--and such labor and work performed was other than the household offices of daily necessity, or other work of necessity or charity--on the first day of the week, commonly called Sunday."

An objection is made to the ordinance that it was never published as required by law. The facts concerning the publication are that, preparatory to the compilation and publication in book form of the ordinances of the city, the mayor and council revised certain ordinances and enacted others, each containing a provision that it should take effect upon publication in such ordinance book. Among these was ordinance No. 2615, defining certain public offenses, known as the misdemeanor ordinance, prescribing penalties for a large number of offenses usually classified under that name. Section 102 of that ordinance defines the offense upon which appellant was tried, and is quoted above. A former revision and publication, known as the Revised Ordinances of 1888, contained a misdemeanor ordinance, section 65 of which was substantially the same as section 102 of the present ordinance, with a change in the penalty, and omitting a clause relating to ferrymen. This ordinance, No. 2615, was passed June 30, 1905, and approved July 6, 1905. On October 6, 1905, another ordinance providing for the publication of the revised ordinances of the city in book form was duly published and took effect, and the book containing the ordinances of the city of a general nature was published accordingly. Among the ordinances contained therein was the misdemeanor ordinance No. 2615, containing the revised section 102, under which defendant was prosecuted. An edition of 500 copies was thus printed by authority of the city and turned over to the city clerk on or before December 1, 1905, at which date that officer certified that such revised ordinances, not previously published in the official city paper, took effect. This certificate appears in the book. The law governing cities of the first class provides:

"That when the council of said city shall order a revision of the ordinances of said city, a publication in the book of ordinances shall be deemed a publication under this act; provided, further, that no less than fifty copies of such book shall be published."

"All ordinances of the city may be proved by the certificate of the clerk, under the seal of the city, and when printed or published in book form, and purporting to be published by authority of the city, shall be read and received in evidence in all courts and places without further proof.

"The city may from time to time authorize the revision of the ordinances and their publication in book form, and may cause to be published in connection therewith the laws relating to cities of the first class, and such forms and instructions as may be deemed advisable." (Laws 1903, ch. 122, §§ 191, 194, 195.)

The civil code contains this provision:

"Printed copies of the ordinances, resolutions, rules, orders and by-laws of any city or incorporated town in this state, published by authority of such city or incorporated town, and manuscript copies of the same certified under the hand of the proper officer, and having the corporate seal of such city or town affixed thereto, shall be received as evidence." (Civ. Code, § 379.)

The precise contention of the defendant is that ordinance No. 2615 is not a revision, but an original ordinance, and therefore not within the purview of section 195 of the Laws of 1903, above quoted. This is a mistaken view. The ordinance is a revision; but if it were not, when the city undertook to revise and compile its ordinances generally a new ordinance designed to be included in, and to be a part of, such general revision would have been within the statute, and when published in the book of ordinances would thereupon take effect and be in force.

Objection is also made to the complaint because the precise date of the alleged offense is not stated. It was stated, however, that it was committed on Sunday, and in the month of October, 1905. The precise date is immaterial. (Crim. Code, § 105.) The gravamen of this offense is laboring on Sunday, and that is charged definitely. (The State v. Brooks, 33 Kan. 708, 7 P. 591; The State v. Nesbit, 8 Kan.App. 104, 54 P. 326.) The complaint is sufficient.

The defendant contends that the evidence was insufficient because it did not prove the charge that he himself labored on Sunday, nor that he compelled his employees to do so. The complaint charges that the defendant opened and managed a theater, gave shows and entertainments therein, and sold tickets therefor, on Sundays, and does not otherwise charge that he performed labor himself, although it does directly allege that he compelled his servants and employees to labor on that...