Town of Gower v. Agee

107 S.W. 999, 128 Mo. App. 427, 1908 Mo. App. LEXIS 62

• Court: Missouri Court of Appeals
• Decided: January 27, 1908
• Status: Published

Opinion

JOHNSON, J.

On a complaint made before the chairman of the board of trustees of the village of Gower, defendant was tried and convicted on a charge of selling intoxicating liquors within one-half mile of the village, “without having taken out or having a license from said town of Gower or any other legal authority to sell the same.” He appealed to the circuit court where the cause was tried on an agreed statement of facts and a judgment of not guilty was entered and plaintiff appealed to this court. Objection is made by defendant to the sufficiency of the record but it is so obviously without merit that we need not discuss it. The agreed facts material to our inquiry are as follows:

Gower is a village incorporated by order of the county court of Clinton county under the provisions of section 6004, Revised Statutes 1899. Its west boundary line is the dividing line between Clinton and Buchanan counties. Defendant, acting under a dramshop license issued by the county court of Buchanan county, established a dramshop in the latter county, within one-half mile of the west line of the village and sold intoxicating liquors as charged in the complaint. He did this without obtaining a license from the village and in direct violation of one of its ordinances which provided that “no person shall within the limits of the town of Gower, nor within one-half mile of said limits directly or indirectly, in person or by another, sell, give away, or dispose of in any manner or suffer the same to be done on his premises, any distilled, malt or vinous intoxicating liquors without a license first obtained according to the provisions of this ordinance as a dramshop keeper.” The penalty provided for a violation of this ordinance is a fine of “not less than twenty nor more than one hundred dollars for each and every offense.” Another section of the ordinance provided for the issuance of dramshop licenses and that “upon every dramshop license there shall be levied and collected a license tax of not less than fifty dollars for every six months or part thereof.” Further, it was agreed by the parties that “defendant is a non-resident of the town of Gower and that service of the warrant in this case was had on him in Buchanan county, Missouri, after being certified to by the county clerk of Clinton county, Missouri, as required by law.”

To sustain the prosecution, these questions must be answered in the affirmative: First, Does the municipality possess authority to prohibit or license and regulate dramshops in territory situated in another county, but Avithin a half mile of the town limits? Second, Should this question be answered in favor of such authority, does the statute provide means for bringing before the toAvn court for trial and punishment a person who commits an offense in the adjoining county, but within one-half mile of the town, against the ordinances enacted to license and regulate dramshops?

Section 6010, Revised Statutes 1899, invests the board of trustees of an incorporated village Avith the power to pass by-laws and ordinances “to provide for licensing and regulating and prohibiting dramshops and tippling houses, public shows, circuses, theatrical and other amusements, to the distance of one-half mile from the corporate limits of such toAvn.” This statute, without regard to county lines, attempts to provide for the establishment of a belt surrounding the corporate limits of a small town in which the municipality shall have the power to adopt and enforce certain specified police regulations obviously designed for the efficient protection of its inhabitants. Defendant argues that “the ordinance (and therefore, the statute) under which plaintiff seeks to fine defendant is unreasonable, a reve-. nue measure and void as applied to defendant who sold liquor outside of the territorial limits of the town of GoAver and not in the same county” and cites in support of his position the folloAving authorities: Wells v. City of Weston, 22 Mo. 384; St. Louis v. Insurance Co., 47 Mo. 151; Plattsburg v. Clay, 67 Mo. App. 497; City of Kansas v. Corrigan, 18 Mo. App. 206; City of Salisbury v. Patterson, 24 Mo. App. 169. But these authorities have no application to the present case. We are not confronted with a question arising from an effort to exercise the taxing power, but with a police regulation. It has been said by the Supreme Court on a number of occasions that “the State has the right, in the exercise of its police power to prohibit the sale of intoxicating liquors without a license. . . . The license fee exacted by the general law regulating dramshops . . . is not a tax within the meaning of the . . . constitution, but is a price paid for the privilege of doing a thing, the doing of which the Legislature has the right to prohibit altogether. Such Iuavs are regarded as police regulations, established by the Legislature for the prevention of intemperance, pauperism and crime, and for the abatement of nuisances, and are not regarded as an exercise of the taxing poAver. Pursuits that are pernicious or detrimental to public inoráis may be prohibited altogether, or licensed for a compensation to the public.” [State ex rel. v. Hudson, 78 Mo. 304; State ex rel. v. Pond, 93 Mo. 606; State v. Bixman, 162 Mo. 1.] And in The Inhabitants of the toAvn of Fredricktown v. Fox, 84 Mo. 59, it was held by the Supreme Court that a town incorporated under the provisions of chapter 91, article 6, Revised Statutes 1899, has authority by virtue of section 6010 to enact an ordinance for the prohibition or for the licensing of dramshops and tippling houses within one-half mile of the corporate limits of the town. The interpretation placed on the statute in the above cases supports the conclusion that police power may be delegated by the Legislature to a municipality over territory immediately adjacent to its limits where an exercise of such authority is necessary to the preservation ■and protection of the peace and good order of the town and its inhabitants and that as the statute under which such authority may be enjoyed provides no exception in cases where the protecting belt may lap over into territory located in another county or municipality, it cannot be said with reason that the Legislature intended to place such restriction on the exercise of the power. Counsel for defendant imagines a situation with respect to which he propounds this question: “If this town can reach over the county line and control a part of Buchanan county, what would be the status should the Buchanan county court under the same statute as the Clinton county court acted in incorporating the town of Gower, establish and create a town or village with like powers, on the Buchanan county side of the line and opposite the town of Gower?” He concludes that “there would be an irreconcilable conflict of jurisdiction of two villages, both of which with like power and authority over the same territory to an extent that would include every foot of ground and every inhabitant of the other, a condition unheard of and almost unimaginable in a practical sense and absolutely intolerable and impossible in a legal sense.”

The very situation supposed is to be found in the case of the Chicago Packing and Provision Co. v. City of Chicago, 88 Ill. 221. There, under a statute which authorized cities and towns “to direct the location and regulate the management and construction of packing houses, renderies, tallow chandleries, bone factories, soap factories and tanneries within the city or village, and within the distance of one mile without the city or village limits,” the city of Chicago adopted an ordinance “prohibiting any person or corporation within the city or within one mile of the city limits” from engaging in such business. Under a license issued by the town of Lake which adjoined the city of Chicago, a packinghouse was established within one mile of the limits of the latter city. The Supreme Court of Illinois saw no difficulty in the way of the conclusion that the prosecution of the business in this territory was subject to the police regulations of each municipality. “To accomplish this purpose (i. e., the protection of the inhabitants of cities and villages against the maintenance of intolerable nuisances), the power was conferred upon cities and villages to regulate these establishments for the distance of one mile beyond their corporate limits, even if that should lap over and embrace a portion of territory included in the boundaries of another municipality. Each, to that extent, has the right to protect its inhabitants, and such establishments, located in such territory, are subject to police power of both corporate bodies. This is within the letter, and, we have no doubt, the spirit of the law. Nor does the fact that appellant is liable to pay a fee to each municipality for the privilege of pursuing a vocation the General Assembly regards of such a character as to require regulation and control, militate against the grant or exercise of the poAver.”

Had the toAvn of Gower been bisected by the county line and each part incorporated by the county court of the county in Avhieh it was located, a dramshop could not be maintained in either town within a half mile of the line Avithout licenses from both. To hold otherwise would be to say that toAvns situated on border lines cannot enjoy the protection of the statute and are impotent against the corrupting- and demoralizing influence of nuisances set up at their very doors. A construction of the statute so harsh and narrow manifestly was' not within the contemplation of the Legislature which enacted it and does not receive our sanction.

Passing to the second question, we find ourselves unable to concur with the learned trial judge in the view that “it seems from the above (sections 1685-86-88-89-90 et seq., Revised Statutes 1889, and section 2444, Revised Statutes 1899), that there is no provision made by the law; for the arrest and prosecution of an offender by the authorities of a town where the offense is committed within one-half mile of the limits of a town where said territory lies within another county.” But before discussing that view, we will dispose of the argument advanced by counsel for defendant that the Legislature could not delegate, had it chosen so to do, the power to the courts of a village incorporated in one county to arrest and try offenders against the village ordinances where the offenses are committed in another county. To sustain this position, we are referred to In re McDonald, 19 Mo. App. 370 and State v. Blunt, 110 Mo. l. c. 337. We readily concede that a person accused of a crime against the general laws required to be prosecuted by indictment is entitled to enjoy not only the right of trial by jury, but to be tried in the county where the crime is charged to have been committed. As we said in In re McDonald, supra. “This boon implies not only the privilege of trial per pais but that this jury shall be of our peers and come from the vicinage, — our county — our neighbors.” This right, however, does, not obtain where the offense is against a municipal law. A prosecution to recover a penalty for the violation of a city ordinance is held by the Supreme Court to be civil in nature “although somewhat criminal in respect to some of the prescribed procedure.” It is not required to originate by indictment, an arraignment of the accused and plea are unnecessary and “a trial by jury is not a constitutional right of tbe defendant in such case. [Delaney v. Police Court, 167 Mo. 667; State ex rel. v. Renick, 157 Mo. 299; Stevens v. Kansas City, 146 Mo. 460; St. Louis v. Weitzel, 130 Mo. l. c. 612; Canton v. McDaniel, 188 Mo. 207, l. c. 228; City of Gallatin v. Tarwater, 143 Mo. 46.] No ancient or statutory right or principle of law is violated in the investiture by the Legislature of municipal courts with jurisdiction over offenses against police regulations which may embrace territory situated in two or more counties. The Legislature had the power to delegate to the village of Gower the right to enforce its police regulations within prescribed limits and regardless of the county line, and we proceed to discuss the conclusion of the trial judge that the statute makes no provision for the arrest and prosecution of an offender against a town ordinance “where an offense is committed within one-half mile of the corporate limits of the town where said territory lies within another county.”

Section 6025, Revised Statutes 1899, provides that “upon- the filing of the complaint provided for in the next preceding section, sworn to by the town attorney, the town marshal, or by any other person competent to testify in the cause, the chairman shall forthwith issue his warrant for the arrest of the accused, and all warrants issued by him shall be directed to the town marshal, the sheriff or any constable of the county, and may be served by any such officer, anywhere within the limits of said county, and not elsewhere, unless said warrant is endorsed in the manner provided for warrants in criminal cases.” The method to be followed in the class of cases last mentioned is prescribed in section 2444: “If the person against whom any warrant granted by a judge of the county court, justice of the peace, mayor or chief officer of a city or town shall be issued, escape or be in any other county, it shall be the duty of any magistrate authorized to issue a warrant in the county in which such offender may be or is suspected to' be, on proof of the handwrriting of the magistrate issuing the warrant • to indorse his name thereon, and thereupon the offender may be arrested in such county by the officer bringing such warrant, or any officer within the county within which the warrant is so endorsed.” The proper construction to be placed on these and other sections of the statute bearing on the subject thus may be stated: First, for the purpose of enacting police regulations to control the establishment and maintenance of dramshops in territory assigned by law to small municipalities and to impose a penalty for the violation of ordinances dealing with that subject, county lines should be disregarded. Second, the municipal court has jurisdiction over offenses committed within the boundaries of the legislative jurisdiction of the village, notwithstanding the offense may have occurred in a county other than that in which the village is incorporated. And, third, while the town marshal is prohibited by the terms of section 6025, supra, from serving the warrant outside of the limits of the county except by following the method provided in section 2444, supra, he is authorized, by following that method, to make the arrest in an adjoining county for an offense committed therein and within the territorial jurisdiction of the town. There is nothing in the language employed in section 2444 at variance with the latter conclusion. Indeed, the only reasonable meaning to be given to the words “if a person . . . escape or be in any other county,” as applied to offenses against town or city ordinances, is to include within their scope any violator of the ordinances, regardless of whether the offense was committed in the county wherein the town is incorporated, and he has escaped thereform, or in an adjoining county wherein the offender has remained.

As the proceedings were initiated and prosecuted in accordance with the views expressed, it follows that the judgment must be reversed and the cause remanded.

All concur.