106 Mo. App. 240 | Mo. Ct. App. | 1904
The proceeding is a'prosecution based on a municipal ordinance and was started by the following complaint filed with the mayor of the city mentioned in it:
“ J. J. Pearce and C. A. Dewitt come and make complaint to M. D. Gwinn, mayor of the city of Billings* that Charles Brown did on the twenty-eighth of November, 1902, within the corporate limits of the city of Bilings, in Christian county, State of Missouri, deal in, retail and sell butchered meat, to-wit: fresh butchered beef to one J. O. Hail and others without first procuring a license as a dealer in fresh meat, contrary to the provisions of sections 119 and 122 of an ordinance of said city, entitled an ordinance in relation to licenses.
“C. A. Dewitt and J. J. Pearce,
‘ ‘ Complainants.
“Subscribed and sworn to before me this ninth day of December, 1902. M. D. Gwinn,
“Mayor.”
The defendant was fined by the mayor and appealed to the circuit court, where this motion was filed:
“Comes now the defendant, Charles Brown, by his*242 attorney, and moves the court to dismiss the original cause of action for the following reasons:
“1. Because the complaint herein filed charges no offense.
“2. Because the complaint does not negative the fact that fresh meat alleged to have been retailed was the product of the defendant’s farm.
“3. Because the complaint does not allege that the sale was willfully and unlawfully made.
“4. Because the complaint does not purport to be under oath, nor is it verified as by law required.
“5. Because cities of the fourth class have no power to regulate, license or prohibit the sale of fresh meat within the city limits, except by butchers or ■keepers of meat shops.
“6. Because the complaint is not signed by any official of said city, nor upon the affidavit of any official of said city.
“7. Because said complaint is not made for recovery of a penalty, but is a criminal proceeding, and no information is filed by the city attorney. ’ ’
The motion was sustained, judgment entered that the defendant go without day and an appeal taken by the city. The case is here on a full transcript, but the-bill of exceptions does not show that the city ordinance alleged to have been violated, or evidence of any kind, was introduced at the hearing of the motion to dismiss; and it is said by counsel that the ordinance was not before the court. The motion could not be intelligently disposed of without reference to the ordinance, unless the complaint is fatally insufficient in form, or in stating an act that, according to constitutional or statutory principles, could not be interdicted by the municipality or made the subject of punishment.
The complaint was verified whether it needed to be or not under section 5926 of the Revised Statutes.
Cities of the fourth class are empowered to levy and collect a license tax on butchers. R. S. 1899, sec.
The proceeding is of a civil character and required no information to be filed by the city attorney or any one else. Ex parte Hallowell, 74 Mo. 395; St. Louis v. Knox, Id. 79.
The effect of the failure of the complaint to allege the fresh meat sold by the defendant was not the produce of his farm, depends largely on the wording of the ordinance on which it is founded. Said regulation may or may not make a negative averment of that character necessary. It is intimated that section 6146 of the Revised Statutes gives farmers the privilege of selling in towns fresh meat which they have produced on their farms, without taking out a license. That view of the statute strikes us as erroneous;.but a decision need not be given on the point in the present case. The statute certainly does not invalidate the complaint for failing to deny that the meat sold by the defendant was the product of his farm. It nowhere appears that he is a farmer or has a farm.
The judgment is reversed and the cause remanded with directions to set aside the dismissal of the cause and try it.