216 S.W.2d 75 | Mo. | 1948
The appellant was tried in the police court of the city of Maryville for violating Ordinance No. 2210 of that city, which ordinance prohibits the sale of intoxicants between 10:00 P.M. and 6:00 A.M. on week days. The judge of that court sustained appellant's motion to quash the complaint and the city appealed the judgment to the circuit court of Nodaway County, and then on change of venue it was tried in the circuit court of Harrison County. That court overruled appellant's motion to quash the complaint. On an agreed statement of facts the court found the appellant guilty of a violation of the ordinance and assessed a fine and cost against him.
On September 17, 1947, the appellant was duly licensed by the State of Missouri and the city of Maryville to sell intoxicating liquors in the original package for consumption off the premises. At 10:40 P.M. on that date he sold Neil Sheehan a pint of wine containing 20 per cent alcohol by volume. The agreed statement of facts further showed that sixty per cent of the intoxicating liquors sold by the appellant at his licensed premises were sold between 9:30 P.M. and 1:30 A.M.
Appellant has raised certain constitutional questions in regard to the validity of this ordinance but in view of certain admissions made in his reply brief it will be necessary to pass on only one question which is stated in his reply brief as follows: *587
"The respondent's brief reduces this case primarily to the single issue whether the ordinance involved is inconsistent with the Liquor Control Act. We concede that the City of Maryville has the authority to regulate the sale of alcoholic beverages. The respondent concedes that such regulation must not be inconsistent with the Liquor Control Act, so the case turns on this question of consistency or inconsistency, which will determine whether the City of Maryville has the authority to prohibit the sale of alcoholic beverages during hours when it is permitted under the statute."
Both Sections 4891, as amended, and 4892, supra, say: "No person having a license under the provisions of this Act shall sell, give away or otherwise dispose of or suffer the same to be done upon or about his premises, any intoxicating liquor in any quantity between the hours of 1:30 o'clock a.m. and 6:00 o'clock a.m. . . ." Appellant contends that these two sections grant him the affirmative right to sell intoxicating liquors from 6:00 A.M. until 1:30 A.M. of the following day. If he is correct in his interpretation of this law, then of course the ordinance in question is in conflict with the above sections and therefore void. See City of St. Louis v. Klausmeier,
Appellant cites the case of Neil House Hotel Co. v. City of Columbus,
But our Liquor Act does not attempt to assert sole control over the subject matter. We have held that the act is "a comprehensive scheme for the regulation and control of the manufacture, sale, possession, transportation and distribution of intoxicating liquor." John Bardenheier Wine Liquor Co. v. City of St. Louis,
The fact that this Liquor Act expressly gives a city the power to enact ordinances regulating the retail sale of intoxicating liquors that are not inconsistent with the Liquor Act is indicative of the fact that the Legislature intended to give cities the power to enact regulations in addition to those prescribed by the State Liquor Act.
Construing Sections 4891 and 4892 in the light of the whole Liquor Control Act, we are of the opinion that these two sections do not give the holder of a state license the absolute right to sell intoxicating liquors from 6:00 A.M. until 1:30 A.M. the following morning. Therefore, a city ordinance requiring a closing time before 1:30 A.M. is not inconsistent with these two sections.
In the case at bar, the respondent city has not undertaken to prohibit the sale of intoxicating liquors within its corporate limits but only to regulate its sale by requiring a closing time of 10:00 P.M.
In the recent case of Nickols v. City of North Kansas City, Nos. 40783 and 40784,
"The fact that the city is powerless to completely prohibit the sale of nonintoxicating beer does not necessarily mean that it may not partially prohibit such sale by confining the same to week days. It may as well be argued that because the city has no power to confiscate one's property by taxation it has no power to tax at all. Many legal regulations may amount to a partial prohibition or restriction of business."
In that case the city of North Kansas City passed an ordinance prohibiting the sale of nonintoxicating beer on Sunday, while the statute only provided that nonintoxicating beer could not be sold between the hours of 1:30 A.M. and 6:00 A.M. This court held that the ordinance was not inconsistent with the statute and therefore the ordinance was valid. *589
The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict unless the statute limits the requirement for all cases to its own prescriptions. Vest v. Kansas City,
It follows that the ordinance is valid and the judgment of the trial court should be affirmed. It is so ordered. Ellison, J., concurs; Leedy, J., absent.