Village of Koshkonong v. Boak

• Decision Date: 07 July 1913
• Citation: 158 S.W. 874
• Parties: VILLAGE OF KOSHKONONG v. BOAK.
• Court: Missouri Court of Appeals

158 S.W. 874

VILLAGE OF KOSHKONONG v. BOAK.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. MUNICIPAL CORPORATIONS (§ 635) — ORDINANCE — VIOLATION — NATURE OF ACTION.

A prosecution for violating a city ordinance is civil and not criminal in character; and hence a complaint therefor is to be determined by the rules applicable to other civil actions.

2. MUNICIPAL CORPORATIONS (§ 639) — CITY ORDINANCE — VIOLATION.

A complaint for a violation of a city ordinance need not be so formal and technical as an indictment or information for a criminal offense against the laws of the state, but in such proceedings any pleading which would be sufficient in an action for debt before a justice of the peace constitutes a compliance with the law; it being generally sufficient to charge the offense in the language of the ordinance with such certainty as to time, place, and manner as to reasonably notify defendant of the charge preferred so as to enable him to prepare his defense and subsequently plead res judicata.

3. MUNICIPAL CORPORATIONS (§ 639) — CITY ORDINANCE — VIOLATION — EXCEPTIONS — STOCK RUNNING AT LARGE — COMPLAINT — "AT LARGE."

A village ordinance provided that no hogs and certain other animals should be allowed to "run at large" at any time within the corporate limits of the village outside the inclosure of the owner, provided that the ordinance should not apply to any of the animals mentioned while being driven through the streets, avenues, or alleys of the village by the owner or other person having charge or control of them. Held, that the words "at large," as used in the ordinance, imported that the animals would be outside the inclosure of the owner without restraint or confinement, and that the provision that the animals referred to must be at large outside the inclosure of the owner did not constitute an exception which it was necessary to negative in a complaint in order that it might state a cause of action.

4. MUNICIPAL CORPORATIONS (§ 639) — ORDINANCE — VIOLATION — PROVISOS.

Where an ordinance prohibiting stock from running at large contained a proviso in a separate clause that the ordinance should not apply to any of the animals specified while being driven through the streets by the owner or custodian, it was not necessary to negative such proviso in a complaint for violation of the ordinance, under the rule that, when a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative such provisos.

5. MUNICIPAL CORPORATIONS (§ 642) — VIOLATION OF ORDINANCE — ACTION — QUESTIONS NOT RAISED AT TRIAL.

Where an action against defendant for violating a village ordinance was erroneously dismissed for alleged insufficiency of the complaint, the ruling could not be sustained on appeal because the ordinance was beyond the power of the village authorities to enact, which proposition had not been submitted to the trial court.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by the Village of Koshkonong against J. N. Boak. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Lamar, Lamar & Lamar, of Houston, for appellant. Dooley, Hiett & Scott, of Houston, for respondent.

FARRINGTON, J.

Respondent was found guilty of a misdemeanor and fined $10 before the chairman of the board of trustees of the village of Koshkonong and appealed to the circuit court, but with the same result. However, his motion for a new trial was sustained, and he then presented and the circuit court sustained a motion to dismiss the cause in which is alleged: "(1) Because the court has no jurisdiction to try this cause. (2) There was no complaint filed in the village court on which to base this cause. (3) That the complaint on which this prosecution was based was not verified by any person as required by law. (4) Because the pretended complaint filed herein does not follow the ordinance upon which it purports to be based." The appeal is from the refusal of the circuit court to set aside the judgment of dismissal.

Ordinance No. 52 of the village is as follows (formal parts omitted):

"Section 1. No horse, mule, ass, cattle, steer, cow, bull, calf, heifer, swine, sheep, nor hogs shall be allowed to run at large, at any time, within the corporate limits of the village of Koshkonong, outside the inclosure of the owner: Provided, that this ordinance shall not apply to any animals above mentioned while being driven through the streets, avenues or alleys of said village by the owner or any other person having charge or control of them.

"Sec. 2. The owner of any of such animals who shall permit any such animal to run at large within the corporate limits of the village of Koshkonong contrary to the provisions of section 1 of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall pay a fine of not less than one dollar nor more than ten dollars."

By ordinance No. 56, section 2 of the above ordinance was amended so as to read as follows:

"Sec. 2. The owner or any person having the charge or control of any such animals who shall permit such animals to run at large within the corporate limits of the village of Koshkonong contrary to the provisions of section 1 of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall pay a fine of not less than one dollar nor more than one hundred dollars."

The complaint in this case is as follows (formal parts omitted): "To the town of Koshkonong, Dr. To violation of ordinance No. 52 in relation to the running at large of certain stock, in said ordinance described, within the corporate limits of said town or village of Koshkonong, ten and no/100 dollars. In this, to wit: That the said J. N. Boak on the 14th day of June, 1911, at the town of Koshkonong, and within the limits thereof did then and there unlawfully allow to run at large within the corporate limits of the said town or village of Koshkonong one certain lot of hogs, the property of the said J. N. Boak, contrary to the said ordinance in such cases made and provided and against the peace and dignity of the town of Koshkonong." This complaint is signed and sworn to by the marshal of the village. It will be observed that the complaint follows substantially the form prescribed in section 9450, R. S. 1909.

Respondent defends the action of the circuit court in dismissing the cause by the contention that the complaint was fatally defective in that it did not negative the provision of the ordinance concerning animals running at large within the owner's inclosure, nor the proviso of the ordinance concerning animals being driven through the streets of the village by the owner or any other person having charge or control of them. And respondent argues, drawing on the decisions affecting indictments and informations in criminal cases, that "where there is an exception or proviso in the same clause or section of the statute which created the offense and enters into and becomes a part of the description of the offense, or is a material qualification of the language defining or creating the offense, the indictment must show by proper negative averments that the offense of which the defendant is accused does not come within the exceptions or proviso," — citing State v. Renkard, 150 Mo. App. loc. cit. 573, 131 S. W. 168; State v. Casto, 231 Mo. loc. cit. 408, 132 S. W. 1115; State v. Crenshaw, 41 Mo. App. 24; State v. Meek, 70 Mo. loc. cit. 356, 357, 35 Am. Rep. 427; State v. Sparrow, 52 Mo. App. 374. And it is said that this rule applies to prosecutions under town ordinances, citing, among others, the case of City of Tarkio v. Loyd, 109 Mo. App. 171, 82 S. W. 1127.

It has long been the settled law that a prosecution for violation of an ordinance is not a criminal action, but a civil one, and that for this reason the sufficiency of a complaint thereunder is to be determined by the same rules as are applicable in other civil cases. City of St. Louis v. Weitzel, 130 Mo. 600, 31 S. W. 1045; City of Carthage v. Bird, 146 Mo. App. loc. cit. 328, 129 S. W. 1054.

The complaint in such prosecutions need not be so formal and technical as an indictment or information for a criminal offense against the laws of the state. City of Gallatin v. Tarwater, 143 Mo. loc. cit. 46, 44 S. W. 750. This logically leads to the conclusion that in prosecutions for violation of town ordinances (where a written pleading of any kind is required) any pleading which would be sufficient in an action for debt before a justice of the peace would comply with the requirements of the law. "Generally it is sufficient to charge the offense in the language of the ordinance and with such certainty as to time, place, and manner as to reasonably notify defendant of the charge preferred, thereby enabling him to prepare his defense and subsequently to plead res adjudicata or (if criminal terminology is to be used) autrefois convict or autrefois acquit." St. Louis v. Ameln, 235 Mo. loc. cit 678, 139 S. W. 429. It is held that a statement filed before a justice of the peace need merely, be definite enough to fairly inform the defendant of the nature of plaintiff's demand and to furnish a sufficient basis for a plea of adjudication in the event a final judgment be rendered. Cardwell v. Conner, 142 Mo. App. loc. cit. 18, 125 S. W. 234. And that, if the statement filed before the justice is sufficient to support a judgment for plaintiff in that court, it is sufficient to support a judgment for him in the circuit court. McKinley v. Lawrence County Water Co., 139 Mo. App. 297, 123 S. W. 77. The complaint in this case follows the form given in the statute almost word for word and is certainly sufficient, considered in the light of the liberal rules governing pleadings in civil cases in the courts of inferior jurisdiction. Indeed, the statute (section 9450, R. S. 1909) provides that the...