Village of Koshkonong v. Boak

• Citation: 158 S.W. 874,173 Mo.App. 310
• Parties: VILLAGE OF KOSHKONONG, Appellant, v. J. N. BOAK, Respondent
• Decision Date: 28 July 1913
• Court: Missouri Court of Appeals

158 S.W. 874

173 Mo.App. 310

VILLAGE OF KOSHKONONG, Appellant, v. J. N. BOAK, Respondent

Court of Appeals of Missouri, Springfield

July 28, 1913

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

Reversed and remanded.

Lamar Lamar & Lamar for appellant.

(1) A proceeding for a violation of a city ordinance is a civil and not a criminal action, and the sufficiency of the complaint will be tested by the rules applicable to other civil cases. City of Mexico v. Harris, 115 Mo.App. 707; Carthage v. Bird, 146 Mo.App. 325; Gallatin v Tarwarter, 143 Mo. 46; Carruthersville v Pallsgrove, 155 Mo.App. 564; Hannibal v. Dudley, 158 Mo.App. 261; Stephens v. Kansas City, 146 Mo. 465; St. Louis v. Marshall, 99 Mo. 475. (2) It is not even required, when the complaint is made by the marshal and the defendant is in custody of the court that the complaint be in writing at all. R. S. 1909, sec. 9450; Village of Oran v. Blees, 52 Mo.App. 599. (3) Where the exception or proviso is not an ingredient of the offense set forth in the clause defining the offense, but is in a subsequent clause separable from the proviso thereof, it is unnecessary for the indictment to negative the proviso. In such cases the subsequent clause or statute is a matter of defense. 22 Cyc. 344 d; State v. Buford, 10 Mo.App. 744; State v. Smith, 233 Mo.App. 242; State v. Shiflett, 20 Mo.App. 415; State v. O'Gorman, 68 Mo.App. 189; State v. Cox, 32 Mo.App. 566; State v. Hale, 72 Mo.App. 78; State v. Stocket, 80 Mo.App. 356; State v. Bockstruck, 136 Mo.App. 365; State v. Handler, 178 Mo.App. 42; State v. Sutton, 24 Mo.App. 377; State v. Snider, 182 Mo.App. 498; State v. Elam, 21 Mo.App. 290; State v. Seal, 47 Mo.App. 305; State v. O'Brien, 74 Mo.App. 549.

Dooley, Hiett & Scott, for respondent.

(1) 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. Kelley's Criminal Law, Par. 193, p. 116; State v. Renkard, 150 Mo.App. 570; State v. Casto, 231 Mo. 398; State v. Crenshaw, 41 Mo.App. 24; State v. Sparrow, 52 Mo.App. 374; State v. Meek, 70 Mo. 355; Tarkio v. Loyd, 109 Mo.App. 171; Billings v. Brown, 106 Mo.App. 240; St. Louis v. Babcock, 156 Mo. 148. (2) The ordinance upon which this prosecution is based is void because it exceeds the powers given to the municipality by statute. Sec. 9436, R. S. 1909. Leach v. Cargill, 60 Mo. 316; Knox City v. Thompson, 19 Mo.App. 523; Joplin v. Jacobs, 119 Mo.App. 134; Nevada v. Eddy, 123 Mo. 546; Chillicothe v. Henry, 136 Mo.App. 468; State ex rel. v. Berryman, 142 Mo.App. 373; State ex rel. v. Wilson, 151 Mo.App. 723-726. (3) If there is any doubt that a certain power or authority has been given a municipality, such doubt must be resolved in the favor of the citizen. Chillicothe v. Henry, 136 Mo.App. 468; State ex rel. v. Berryman, 142 Mo.App. 373; State ex rel. v. Wilson, 151 Mo.App. 723-727; State v. Butler, 178 Mo. 272; Independence v. Cleveland, 167 Mo. 384-388. (4) Whether this proceeding be viewed by this court as simply a civil action or as a quasi criminal action, the complaint should state a cause of action sufficient to meet the requirement of pleadings in the justice courts. St. Louis v. Babcock, 156 Mo. 148; St. Joseph v. Harris, 59 Mo.App. 122; Memphis v. Connor, 53 Mo.App. 468; Lamar v. Hewitt, 60 Mo.App. 314; Tarkio v. Loyd, 109 Mo.App. 171.

FARRINGTON, J. Robertson, P. J., concurs. Sturgis, J., concurs, and thinks the ordinance in question is valid.

OPINION

FARRINGTON, J.

Respondent was found guilty of a misdemeanor and fined ten dollars 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):

"Sec. 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, Revised Statutes 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. 570, 131 S.W. 168; State v. Casto, 231 Mo. 398, 132 S.W. 1115; State v. Crenshaw, 41 Mo.App. 24; State v. Meek, 70 Mo. 355, 357; 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. 325, 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. 40, 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. 669, 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. [...