The Town of Gower v. Agee

• Decision Date: 27 January 1908
• Citation: 107 S.W. 999,128 Mo.App. 427
• Parties: THE TOWN OF GOWER, Appellant, v. REUBEN B. AGEE, Respondent
• Court: Kansas Court of Appeals

107 S.W. 999

128 Mo.App. 427

THE TOWN OF GOWER, Appellant, v. REUBEN B. AGEE, Respondent

Court of Appeals of Missouri, Kansas City

January 27, 1908

Appeal from Clinton Circuit Court.--Hon. Joshua W. Alexander, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Frost & Frost for appellant.

(1) The town of Gower being organized under chapter 91, article 6, of Revised Statutes 1899, has such power as the Legislature has granted to towns organized under that law. And among the powers conferred is that to regulate, license or prohibit dramshops within one-half mile beyond its limits. R. S. 1899 sec. 6010. This power to regulate, license and prohibit beyond the limits is a valid grant of power. Fredericktown v. Fox, 84 Mo. 59. (2) Plaintiff corporation is given valid policing power one-half mile beyond its limits; defendant is within the limits over which this policing power extends, and is subject to its control. This policing power being a State grant we see no reason why county lines should operate to defeat its purpose, and being for the people's benefit and health should be liberally construed, if such a construction be necessary. Chicago Packing Co. v. Chicago, 88 Ill. 221; Carpenter v Realty Co., 103 Mo.App. 493. (3) In granting this power to villages the Legislature recognized the necessity of such power in a village for the protection of the health and morals of its citizens, and granted it jurisdiction over this outside territory for that purpose, and every person located within that territory is as much within the inhibition of the laws and ordinances of said town as if within its limits. State ex rel. v. Hudson, 78 Mo. 302; State ex rel v. Bond, 93 Mo. 623; State v. Bixman, 162 Mo. 22. (4) The prosecution of defendant for violation of plaintiff ordinance is a civil proceeding, and the article under which plaintiff is incorporated provides the manner of commencing said prosecution by the filing of complaint and the service of a warrant upon the defendant, and also provides how said warrant may be served outside the county and the learned circuit judge was in error in supposing that no method had been provided for the service of such warrant outside the county. R. S. 1899, sec. 6025; Delany v. Police Court, 167 Mo. 678; State ex rel. v. Renick, 157 Mo. 299; Stevens v. Kansas City, 146 Mo. 460; St. Louis v. Weitzel, 130 Mo. 612; Canton v. McDaniel, 188 Mo. 228; Gallatin v. Tarwater, 143 Mo. 46.

E. C. Hall for respondent.

(1) Section 6010 which authorizes county courts to incorporate villages, does not confer upon them any power to create a town in another county, or give them any control over the territory outside of their respective counties. R. S. 1899, secs. 6010, 6024, 6025. (2) The ordinance under which plaintiff seeks to fine defendant is unreasonable, a revenue measure and void as applied to defendant, who sold the liquor outside of the territorial limits of the town of Gower and not in the same county. R. S. 1899, sec. 6045; Wells v. Weston, 22 Mo. 384; St. Louis v. Insurance Co., 47 Mo. 151; Plattsburg v. Clay, 67 Mo.App. 497; Kansas City v. Corrigan, 18 Mo.App. 206; Salisbury v. Patterson, 24 Mo.App. 169. (3) This action is not only of a quasi-criminal character but is to be prosecuted in the same manner as a misdemeanor. The summons is a warrant of arrest whereby the body of the defendant is taken and held unless bail is given; the warrant is returnable forthwith, and if the judgment is against the defendant he is fined. In re McDonald, 19 Mo.App. 370; State v. Blunt, 110 Mo. 337; R. S. 1899, sec. 6013. (4) If the ordinance is intended to have force and effect outside of the county in which the village is located it will be repugnant to the legislative policy of the State and contrary to the organic law or charter of such village. Ex parte Loving, 178 Mo. 194; Kansas City v. Oppenheimer, 100 Mo.App. 527; Kemp v. Monett, 95 Mo.App. 452; Willow Springs v. Withaupt, 61 Mo.App. 275.

OPINION

JOHNSON, J.

--On a complaint made before the chairman of the board of trustees of the village of Gower, defendant was tried and convicted on a charge of selling intoxicating liquors within one-half mile of the village, "without having taken out or having a license from said town of Gower or any other legal authority to sell the same." He appealed to the circuit court where the cause was tried on an agreed statement of facts and a judgment of not guilty was entered and plaintiff appealed to this court. Objection is made by defendant to the sufficiency of the record but it is so obviously without merit that we need not discuss it. The agreed facts material to our inquiry are as follows:

Gower is a village incorporated by order of the county court of Clinton county under the provisions of section 6004, Revised Statutes 1899. Its west boundary line is the dividing line between Clinton and Buchanan counties. Defendant, acting under a dramshop license issued by the county court of Buchanan county, established a dramshop in the latter county, within one-half mile of the west line of the village and sold intoxicating liquors as charged in the complaint. He did this without obtaining a license from the village and in direct violation of one of its ordinances which provided that "no person shall within the limits of the town of Gower, nor within one-half mile of said limits directly or indirectly, in person or by another, sell, give away, or dispose of in any manner or suffer the same to be done on his premises, any distilled, malt or vinous intoxicating liquors without a license first obtained according to the provisions of this ordinance as a dramshop keeper." The penalty provided for a violation of this ordinance is a fine of "not less than twenty nor more than one hundred dollars for each and every offense." Another section of the ordinance provided for the issuance of dramshop licenses and that "upon every dramshop license there shall be levied and collected a license tax of not less than fifty dollars for every six months or part thereof." Further, it was agreed by the parties that "defendant is a non-resident of the town of Gower and that service of the warrant in this case was had on him in Buchanan county, Missouri, after being certified to by the county clerk of Clinton county, Missouri, as required by law."

To sustain the prosecution, these questions must be answered in the affirmative: First, Does the municipality possess authority to prohibit or license and regulate dramshops in territory situated in another county, but within a half mile of the town limits? Second, Should this question be answered in favor of such authority, does the statute provide means for bringing before the town court for trial and punishment a person who commits an offense in the adjoining county, but within one-half mile of the town, against the ordinances enacted to license and regulate dramshops?

Section 6010, Revised Statutes 1899, invests the board of trustees of an incorporated village with the power to pass by-laws and ordinances "to provide for licensing and regulating and prohibiting dramshops and tippling houses, public shows, circuses, theatrical and other amusements, to the distance of one-half mile from the corporate limits of such town." This statute, without regard to county lines, attempts to provide for the establishment of a belt surrounding the corporate limits of a small town in which the municipality shall have the power to adopt and enforce certain specified police regulations obviously designed for the efficient protection of its inhabitants. Defendant argues that "the ordinance (and therefore, the statute) under which plaintiff seeks to fine defendant is unreasonable, a revenue measure and void as applied to defendant who sold liquor outside of the territorial limits of the town of Gower and not in the same county" and cites in support of his position the following authorities: Wells v. City of Weston, 22 Mo. 384; St. Louis v. Insurance Co., 47 Mo. 150; Plattsburg v. Clay, 67 Mo.App. 497; City of Kansas v. Corrigan, 18 Mo.App. 206; City of Salisbury v. Patterson, 24 Mo.App. 169. But these authorities have no application to the present case. We are not confronted with a question arising from an effort to exercise the taxing power, but with a police regulation. It has been said by the Supreme Court on a number of occasions that "the State has the right, in the exercise of its police power to prohibit the sale of intoxicating liquors without a license. . . . The license fee exacted by the general law regulating dramshops . . . is not a tax within the meaning of the . . . constitution, but is a price paid for the privilege of doing a thing, the doing of which the Legislature has the right to prohibit altogether. Such laws are regarded as police regulations, established by the Legislature for the prevention of intemperance, pauperism and crime, and for the abatement of nuisances, and are not regarded as an exercise of the taxing power. Pursuits that are pernicious or detrimental to public morals may be prohibited altogether, or licensed for a compensation to the public." [State ex rel. v. Hudson, 78 Mo. 302; State ex rel. v. Pond, 93 Mo. 606, 6 S.W. 469; State v. Bixman, 162 Mo. 1, 62 S.W. 828.] And in The Inhabitants of the town of Fredericktown v. Fox, 84 Mo. 59, it was held by the Supreme Court that a town incorporated under the provisions of chapter 91, article 6, Revised Statutes 1899, has authority by virtue of section 6010 to enact an ordinance for the prohibition or for the licensing of dramshops and tippling houses within one-half mile of the corporate limits of the town. The interpretation placed on the statute in the above cases supports the conclusion that police power may be delegated by the...