59 Mo. App. 122 | Mo. Ct. App. | 1894
This is an action to recover a penalty for the violation of an ordinance of the plaintiff city.
Under the provisions of section 2, General Ordinances Number 51, Record B, page 34, Revised Ordinances 386, it is made the duty' of each and every police officer of the city to inform the city attorney as soon as practicable of all violations of the ordinances of the city and whenever any such violation shall come to his knowledge such information shall be filed in writing, signed by the officer making the same, and shall be accompanied with the names of the witnesses to such violation and if the officer making the report shall have good reason to believe that the person reported has no fixed place of residence, or is a nonresident, or is about to leave the limits of the city, such report or informa
Section 1 of General Ordinances Number 51, already referred to provides that all fines and penalties for violation of any. ordinance of the city shall be recoverable by suit, in the nature of an action for debt before the recorder, and no suit shall be commenced or judgment rendered in any case, until a statement shall be filed with the recorder, signed by the city attorney or the person acting in his stead, which statement shall be in form as follows:
“The City of St. Joseph, Plaintiff, I v. V ---, Defendant. J
Before---, the recorder of the city of St. Joseph. Plaintiff complains of defendant John Smith and for cause of complaint alleges that the said defendant on the--day of -A. D. 18— did violate an ordinance of said city by (here insert the particulars) to the damage of plaintiff in the sum of -dollars. A. B., City Attorney.” Such statement may be founded either upon the personal knowledge of the city attorney, the report made to him in writing by some officer or policeman of the city, the affidavit of
The defendant being found di’unk in the city by a policeman was arrested and thereupon the officer so making the arrest filed with the city attorney the following report, to wit:
“St. Joseph, Mo., July 10, 1893.
“To City Attorney, St. Joseph, Mo.
“Sir:—I hereby officially report that Charles Harris did, on the 10th day of July, 1893, violate an ordinance of the city, to wit: Section-of chapter - of the ordinances of the city of St. Joseph, Missouri, then and there being drank in said city.
“Officers: Weber and Paulks.”
Thereupon the city attorney filed before the city recorder the following information which was attached to said report, to wit:
“Before John A. Dolman, recorder of the city of St. Joseph, Missouri.
“City of St. Joseph, Plaintiff,'! v. V “Charles Harris, Defendant. J
“W. R. Hoffman, city attorney for the city of Saint Joseph, aforesaid, informs the court that the said city of St. Joseph is a municipal corporation and city of the second class, and one Charles Harris did, on the 10th day .of July, 1893, violate an ordinance of said city, to wit: Section V, chapter 46 of the general ordinances of said city, by then and there, in said city of St. Joseph, Missouri, being drunk and in a state of intoxication on a street, alley and public place, to the damage of said city ($50).
“[Signed.] W. R. Hoffman, City Attorney”
The defendant thereupon appeared before the city recorder, who, after hearing the evidence, found him
The report of the police officer did not inform the city attorney of any violation of any ordinance of the city. It simply informed him that the defendant had violated an ordinance of the city by being “then and there drunk in said city.” It is not an offense against the ordinances of the city for one to be drunk therein. He must, according to the section of the ordinance already quoted, not only be drunk in a street, avenue, alley or public place within the city, or in a piivate house or place therein, but he must also be drunk to the annoyance of a “citizen or person” therein.
The common council in undertaking to regulate the subject of drunkenness under its police power by its ordinance in that direction went to the uttermost limit. It would seem that in this state drunkenness is not per se the subject of legislative prohibition. Drunkenness can not be made the subject of municipal regulation, except where its existence in the individual is at a place or under circumstances or conditions when it annoys or disturbs orthers. And so it would appear that any sweeping regulation interdicting, under penalty, drunkenness generally, or in cases other than those specified in the exception just stated, would be an invasion of the “inalienable rights of the citizen.” St. Louis v. Fitz, 53 Mo. 582.
The information did not contain sufficient to show, without extraneous aid, that the recorder’s court in which it was lodged had jurisdiction of the charge it contained. Such complaints are not required to come up to the technical standard of an indictment, yet they must be sufficiently definite to advise the defendant of what offense he is charged. City of Salisbury v. Patterson, 24 Mo. App. 169; City of Marshall v. Standard, 24 Mo. App. 192; St. Louis v. Fitz, 53 Mo. 587; City of Memphis v. O’Connor, 53 Mo. 468. And 'whether this proceeding be regarded as simply a civil action or as quasi criminal, in either view both the report and information based thereon ought to show that the defendant was found drunk under such circumstances as to be violative of the prohibition of the city ordinances, in order to give the recorder jurisdiction of the subject-matter. Missouri City v. Hutchinson, 71 Mo. 46; City of Kansas v. Flanagan, 69 Mo. 23.
The last cited case was where the information was signed by another in the absence of the city attorney at
Since the city attorney is the creature of statute and stands upon the same footing and is governed by the same laws as mayors, police justices, marshals and other similar officers of cities, towns and villages, it must follow that he can act only where a statute or ordinance confers authority to do so, and then only when he pursues the mode or manner therein prescribed. This'seems to be the result of the cases which we have just referred to. Without pursuing the inquiry further, enough has been said to show that the report lodged by the police officer with the city attorney did not show that the defendant had committed an offense against any ordinance of the city, nor did the information filed by the city attorney with the recorder, which had alone for its foundation said report, allege an offense against any ordinance of the city. The report, not showing that an offense had been committed by defendant, did not authorize the city attorney to file information based thereon. From the beginning to the end of the proceeding there was an entire absence
"We are, therefore, of the opinion that the action of the criminal court in sustaining the defendant’s motion to quash the information and dismissing the cause was not erroneous, so we will affirm the judgment.