State v. Binswanger

ELLISON, J. The defendant was prosecuted by information filed by the prosecuting attorney of Buchanan county, for selling and retailing fermented or distilled liquor on Sunday contrary to the provisions of section 2243, Revised Statutes 1899, in relation to “Sell: ing goods on Sunday.” He was convicted in the trial court and fined twenty-five dollars. The cause was submitted to the court, without a jury, on a statement of facts wherein it was agreed that defendant was regularly licensed as a dramshop keeper by the city of St. Joseph, a city within Buchanan county. That he sold a pint of whiskey and a glass of beer at his dramshop in such city on Sunday, the 8th of July, 1906. But that, prior to such sale, the city council of St. Joseph had duly ordained a general ordinance concerning dramshop keepers, Avliich only prohibited the sale of intoxicating liquor between the hours of 8:30 a. m. and 12:30 p. m. on Sunday; and that the sale made by defendant was not Avitliin that time. The city of St. Joseph is a city of the second class and its charter is found in chapter 91, article 3, Revised Statutes 1899. By the express terms of section 5508, [82] subdivision 21, the Legislature gave to such cities the exclusive power to license, regulate or suppress dram-shops. In State v. Kessells, 120 Mo. App. 233, we decided, that such charter expressly excluded the general State law as to dramshops from operation within the limits of such cities. We called attention and gave effect to the well recognized rule of law that a particular provision such as contained in subdivision 21 of section 5508 of the charter of cities of the second class would overcome a general law on the same subject. That, in effect, the special provision operated as an exception to the general law. And also that an enactment, subsequently, of a general law did not have the effect to repeal a prior special provision. In addition to the authority of the Missouri Supreme Court for those statements of rules of construction, we refer to 1 Dillon on Municipal Corp., sections 87, 88, where the author discusses municipal charters in their relation to the general State law. And furthermore it appears that the word “exclusive” lias been inserted in the charter as an amendment. It is getting very far beyond the bounds of reason to say, in the light of that fact, that the Legislature did not mean that the control of the council of cities of the second class should be an exclusive control. In the charter of such cities in 1879, such cities did not have exclusive control. The law then was that such cities merely had power “to license, tax, regulate or suppress dram-shops.” [Sec. 4644, R. S. 1879.] But in 1889 (section 1255, subdivision 21, Revised Statutes 1889), the Legislature amended this and inserted the Avords “exclusive poAver” instead of merely “power,” and so it Avas carried into the revision of 1899. Not only that, but at the same time this amendment was put into the charter, the Legislature also amended subdivision 18 of section 4644, Revised Statutes 1879, so as to carry out the. idea of exclusive control by providing for a dramshop license [83] exclusively from the city, the city dividing the total amount of such license with the State and county: See section 1255, R. S. 1889, subdivision 20, carried into revision of 1899, section 5508, subdivision 20. So that, as stated in the Kessells case, no State or county license has ever been had in such city since such amendments, a period of nearly twenty years. In addition to what was stated in the Kessells case in answer to the suggestion that the general law of 1891 (Acts 1891, p. 128) operated as a repeal of the charter provision in controversy, counsel for defendant call attention to a provision in the first section of the act disclosing that, it only purports to affect dramshop keepers who are licensed under the provisions of that act, that on its face it shows that it has no reference to cities of the second class where dramshop keepers are licensed in the manner required by the charter of such cities. The law of 1891 was enacted to govern dramshops licensed by county courts as therein required. It manifestly had no reference to such dramshops as were under the exclusive control of cities of the second class and where license fees were exclusively fixed by the city and divided by the city with the State and county as therein specifically directed. It is suggested that the charter of cities of the second class, as interpreted in State v. Kessells, becomes a special law and gives to citizens of St. Joseph a different law from other citizens of the State. Our statute (chapter 91, Revised Statutes 1899) has divided all the cities in the State into classes, there being four in number; and in' addition there are “towns and villages.” Each of these differs in many ways from the other in regard to the regulation of business, or licensing or regulating vocations. They likeAvise present many points of difference in various police regulations. The chief parts of the suggestions now made to us, if allOAved to be of any force, would destroy and set at naught the charters [84] of all cities in the State. The charter which has been construed by us was not made especially for the city of St. Joseph, but for all cities in the State of a certain ■population, which are designated as cities of the second class. The charter only becomes the charter of St. Joseph by reason of it belonging to that class. Such charters are not special enactments, but have been repeatedly recognized as general laws for nearly thirty years. [State ex rel. v. Tolle, 71 Mo. 645; Humes v. Railway, 82 Mo. 221; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. County Court, 128 Mo. 427; Dunne v. Railway, 131 Mo. 1.] The only remaining feature in the case relates to the difference in the statute under which this defendant is charged from that under which Kessells was prosecuted. This defendant, as already stated, is charged with a violation of the statute relating to selling goods on Sunday, in that he sold intoxicating liquors on Sunday, while Kessells was prosecuted for a violation of the dramshop act in selling such liquors on that day. We are of the opinion that the Legislature having given over to cities of the second class the exclusive power to regulate dram-shops; and the sale or non-sale by dramshop keepers of intoxicating liquors on Sunday, or within certain hours of. that day, being matters of regulation, it follows that defendant, not having violated the city ordinance regulating such sales, should not have been convicted. The judgment is therefore reversed and the defendant is discharged. All concur.