Town of Carrollton v. Rhomberg

• Decision Date: 31 October 1883
• Citation: 78 Mo. 547
• Parties: THE TOWN OF CARROLLTON v. RHOMBERG, Appellant.
• Court: Missouri Supreme Court

78 Mo. 547

THE TOWN OF CARROLLTON

v.RHOMBERG, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Hale & Son for appellant.

Shewalter & Sebree and Mirick for respondent.

MARTIN, C.

This was a prosecution commenced in the mayor's court of the town of Carrollton against Hieronymus Rhomberg on the 19th day of November, 1877, wherein he was charged with violation of a city ordinance prohibiting the sale of liquor on Sunday. He was found guilty and fined $10. He in due time appealed to the circuit court, where his appearance was entered. The prosecutor moved that the appeal be dismissed on the ground that no appeal from the mayor's court was provided for by law. The motion was sustained by the court and judgment of dismissal entered, together with a judgment for costs. This was done in December, 1878. From this judgment of dismissal the defendant appealed to this court. In February, 1883, while his appeal was pending here, he died and his administrator was made a party. The death of the original defendant is pleaded here in abatement of the prosecution.

1. APPEAL.

In our opinion the circuit court erred in holding that the defendant could not appeal from the judgment against him in the mayor's court. The 25th section of the amended charter of Carrollton reads as follows:

Section 25. The mayor shall have, within the limits of the town, all the powers and jurisdiction vested in justices of the peace in civil and criminal cases, and shall perform and exercise all the powers and duties enjoined on justices of the peace in similar matters and in like manner, and he shall be entitled to similar fees, and all his proceedings shall be under the same government and control as the proceedings of justices of the peace in like cases, and appeals to the circuit court may be taken in like manner as appeals in justices' courts. The mayor shall have jurisdiction in all cases arising under this act, and under all ordinances made in accordance with this act. He may issue his warrant and cause to be apprehended and brought to summary trial any person accused of transgressing any of the town ordinances. He shall grant the accused the right to be tried by six competent jurors, who, if they find him guilty, shall assess his fine according to the ordinances, and if any person fined, as aforesaid, refuse to pay his fine, the mayor may sentence him to be imprisoned not exceeding ten days. Fines, penalties and forfeitures accruing to said town may be recovered in the summary manner aforesaid, or they may be recovered by an action of debt in the mayor's court, or any court of competent jurisdiction.

The city provides for appeals also in its ordinances. Section 28 of ordinance No. 1 of said town, was read in evidence on the hearing:

Section 28. Any person fined under any of the ordinances of the town may prosecute an appeal to the circuit court of Carroll county, on complying with the regulations concerning appeals now prescribed by the State law in cases of appeals taken from justices' courts.

We think the phrase “and appeals to the circuit court may be taken in like manner as appeals in justices' courts,” was intended to apply to all cases of which the mayor had jurisdiction, whether under the ordinances or under the law defining the jurisdiction of a justice of the peace. Any other construction would lead to the manifest injustice of giving the right of appeal when only a few dollars are involved in...