Inhabitants of Town of Fredericktown v. Fox

84 Mo. 59

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinion

Ewing-, C.

This was a suit commenced before a justice of the peace, in Madison county, under section 5019 of the Revised Statutes, 1879, to recover a fine from the defendant for keeping a dramshop within half a mile of the corporate limits of the town of Fredericktown, and selling intoxicating liquors without having a license therefor. On appeal to the circuit court there was a trial die novo before the court, a jury being waived, and a judgment for the defendant, whereupon the plaintiff brings the ease here on writ of error.

To sustain the allegations of the complaint the plaintiff read in evidence an order of the county court of Madison county incorporating the “Inhabitants of the Town of Fredericktown,” in 1868 ; put in evidence the ordinances of the plaintiff, and offered evidence tending to prove all the allegations of the petition. The defendant then offered to read in evidence another order of the county , court of Madison county, dated June 13, 1827, incorporating the inhabitants of the town of Frederick-town, but which, on objection of the plaintiff, was excluded. Plaintiff then asked the court to declare the law to be that if defendant was a dram-shop keeper in half a mile of the corporate limits of plaintiff, and sold liquor without license, he was guilty, and the court must find for plaintiff. Plaintiff also asked two other instructions in substance like the above, and declaring as a legal proposition that the plaintiff must recover if the evidence supported the allegations of the statement. The court refused all of them. The defendant asked no instructions. The court found for the defendant.

I. The complainant was duly incorporated under the forty-first chapter of General Statues 1865, page 239. By section seven of that law, the complainant had power, amongst other things, “to provide for licensing and regulating dramshops and tippling houses, * * * in and to the distance of one-half mile from the corporate limits of such town, * * * to impose and appropriate fines, forfeitures, and penalties for breaking their ordinances; * * * to levy and collect taxes, * * * and to pass such other by-laws and ordinances for the regulation and police of such town and commons thereto appertaining, as they shall deem necessary, not repugnant and contradictory to the laws of the land.” This would seem to be ample authority for the plaintiff to levy taxes and impose fines and forfeitures, for violations of .its ordinances. This was the power given to it by its charter, which was the general law. Then under this authority the plaintiff adopted an ordinance to the effect that, “No person shall be permitted to engage in keeping a dramshbp, tippling house or any other kind of liquor saloon, nor to retail beer within the corporate limits of said town, or within the distance of one-half mile from the corporate limits of said town, without first procuring a license permitting him or her so to do.”

The statement of the cause of action was sufficient. The plaintiff was legally incorporated, and had ample legal power to enact the ordinances read in evidence; and under the pleadings and the evidence, which fully established the facts, and about which there was no dispute, the instructions two, three and four, asked by the plaintiff, should have been given.

II. As the case must be reversed for the error of the court below in refusing the instructions asked by the plaintiff, it may be proper to notice the position insisted on by the defendant in relation to the attempt to question the corporate existence of plaintiff. The defendant attempted to show that the plaintiff was not a corporation by offering evidence of a former and older order of court incorporating the plaintiff. This the court excluded, and we think properly. The corporate capacity ' of plaintiff cannot be thus questioned by private parties. Judge Cooley, in his Constitutional Limitations, p. 254, says: “In proceedings where the question whether a corporation exists or not arises collaterally, the courts will not permit its corporate capacity to be questioned, if it appear to be acting under color of law, and recognized by the state as such. Such question should be raised by the state itself, by quo warrcwito or otner direct proceeding.” City of St. Louis v. Shields, 62 Mo. 247. In Matthews v. Skinker, 98 U. S. 621, the Supreme Court of the United States says: “A private person cannot directly or indirectly usurp this function of the govern-ment.” To the same effect is Thornton v. Bank, 71 Mo. , and cases cited in that opinion; Shewalter v. Pirner, 55 Mo. 218; Land v. Coffman, 50 Mo. 243. Numerous other authorities might be cited, but the principle has been so well settled it is useless to pursue it further.

The judgment of the circuit court is reversed and the case remanded.

All concur.