State v. Patrick

65 Mo. App. 653, 1896 Mo. App. LEXIS 269

• Court: Missouri Court of Appeals
• Decided: March 23, 1896
• Status: Published

Opinions

Smith, P. J.

Defendant was indicted, tried, and convicted for a violation of the provisions of article 2, chapter 56, Revised Statutes.

It is admitted that the provisions of said statute were in force in the city of Fayette at the time of its violation by defendants and the finding of the indictment therefor. It is further admitted that at the time of the trial said statutory provisions were not in force in said city of Fayette, the same having been previously rejected by a vote of the qualified voters of that city, on the fifth day of July, 1895.

The propriety of the action of the court in refusing to give an instruction asked by the defendants, to the effect that the “local option law” was not then in force within the city of Fayette and the defendant could not therefore be convicted for the violation thereof, is the only question raised by the appeal. Whenever the term “local option law” is hereafter used, it will be understood as “referring to said article” 2 of chapter 56, Revised Statutes.

The local option law is a general law in this state,, but is in force only in those counties and cites where it has been adopted by a vote of a majority of the qualified voters therein. It will be seen by reference to its provisions, section 4604, that when once adopted, it stands for four years and until rejected by the same power that adopted it. In the present instance, it had been first adopted and then subsequently rejected.

It is pertinent to now inquire whether the rejection of this law had the effect to repeal it, for, if so, then it is clear that under section 3972, Revised Statutes, which provides that: “No offense committed and no fine, penalty, or forfeiture incurred, or prosecution commenced or pending, previous to or at the time when any statutory provision shall be repealed or amended shall be affected by such repeal or amendment, but the trial and punishment of all offenses and the recovery of such fines, penalties, or forfeitures, shall be had, in all respects, as if the provisions had not been repealed or amended, except that all such proceedings shall be conducted according to existing laws. Provided, that if the penalty or punishment for any offense be reduced or lessened by any alteration of the law creating the offense, such penalty or punishment shall be assessed according to the amendatory law;” the judgment must be upheld; but, if its rejection did not have that effect, then the opposite result must follow.

The power to enact, amend, or repeal a statute is lodged by the constitution in the legislature and is not the subject of delegation. It is therefore not within the power of the qualified voters of any city or county, at any election held by them, to enact, amend, or repeal a statute. The effect of the adoption of the local option law by the qualified voters of the city of Payette was not to repeal the general statutes in relation to dramshops, but to suspend the operative force of the latter in that city, during the time the former was in force therein. State v. Pond, 93 Mo. 606.

The case here is distinguishable from that of the State v. Bender, 38 Mo. 451, and perhaps other cases in this state that it is needless to cite, where the adoption of a city ordinance had the effect to necessarily repeal and supersede a previous statute; for here the dramshop statute was suspended and superseded by the adoption of the local option law and subsequently restored by the rejection of the latter, but the adoption of the latter did not repeal the former, nor did the rejection of the latter affect its own existence as a statute of a general nature. The local option law was in existence as well after as before the trial and conviction of the defendants. The defendants were indicted under a statute in force in the locality of the crime, at the time of its commission, but not at the time of the trial and conviction. But this did not result from the repeal of either of those statutes.

It can no more be said that the rejection of the local option law in effect accomplished its repeal, than that its enactment was effected by its adoption, for, as already observed, a statute, under our system of government, can neither be enacted nor repealed in that way. How can it be said that the local option law has been repealed, when it may be again put in force, without the agency of the lawmaking power? There is a plain distinction between the repeal of a statute and the suspension of its operative force.

When the offense is committed before the repeal, but the trial does not take place until afterward, the saving clause contained in section 3972, already quoted, applies; but if the violated statute is not repealed, but merely suspended in its operation, in the locality of the crime, as here, it is equally plain the said saving clause has no application. Criminal statutes are strictly construed and nothing is taken by intendment to be within the provisions of the same unless clearly embraced within the words of the statute. State v. McCance, 110 Mo. 399; State v. Boogher, 71 Mo. 631; Endlich on Interpretation, section 479. When a strict construction is called for, the particular case, to come under the statute, must be within both its letter and its spirit and reason. And though within the spirit and reason of the statute, that is not enough, unless within its letter. Black on Interpretation of Laws, 282.

It is too clear for argument that the rejection of the local option law and the consequent suspension of Its operation in the city of Fayette was not the repeal of that law contemplated by the provisions of said section 3972; but since, at the time of the trial of the defendants, the law which they had violated was not in force in said city for any purpose, we must hold that the action of the court in refusing the defendant’s Instruction was error.

It results that the judgment must be reversed and the defendants discharged.

Q-ill, J., concurs. Elli-SON, J., dissents.