State v. Alsup

140 Mo. App. 194 | Mo. Ct. App. | 1909

I.

NIXON, P. J.

(after stating the facts). — This offense for which the defendant was prosecuted was ere-ated by statute, and the information followed the words of the statute and under the authorities is sufficient. [State v. Mitchell, 6 Mo. 147; State v. Rowlen, 114 Mo. 626; City of Louisiana v. Anderson, 100 Mo. App. 341, 73 S. W. 875; State y. Dooley, 121 Mo. 591, 26 S. W. 558; State v. Fare, 39 Mo. App. 110; State v. Sayman, 61 Mo. App. 244.]

II.

Another objection raised by the appellant is that the circuit court had no jurisdiction to hear and try this cause for the reason that the special judge, Hon. C. A. Denton, in the absence of the regular judge and without his direction and sarction, adjourned the court that he was holding from September 8, 1908, to September 30, 1908, on the application of the appellant. The facts as to such adjournment are stated as follows in appellant’s brief:

“And thereafter on the same day on application of defendant this cause was continued to the 30th day of September, 1908, and in the absence of Hon. F. C. Johnson, regular judge of said court, and without his order or direction the Hon. C. A. Denton, judge of the 29th circuit of Missouri, adjourned this court to the 30th day of September, 1908. Thereafter on the 30th day of September, 1908, the Hon. C. A. Denton, judge of the 29th judicial circuit of Missouri, and in the absence of the Hon. F. C. Johnson, judge of this court, opened the court and called this case.”

The substance of the objection, as will be seen, is that the special judge in holding a term of court to try a special case is a sort of satellite revolving around the greater luminary, — the regular judge; that his jurisdiction is limited and that he cannot adjourn the court without the consent of the regular judge or in his presence and under his order or direction. This misconception is exploded by the unambiguous language of the law itself. [Section 2597, R. S. 1899.] It clothes the special judge with all tbe judicial power, functions and duties of tbe regular judge and explicitly provides: “it shall be tbe duty of the judge so requested to appear and bold tbe court at tbe time appointed for the trial of said cause; and be shall during the trial of said cause, possess all the powers and perform all tbe duties of a circuit judge at a regular term of such court, and may adjourn the case from day to day, or to some other time as the exigencies of the case may require ” This identical question has received a very satisfactory, able and exhaustive examination by the St. Louis Court of Appeals in tbe case of tbe State of Missouri v. Pope, 110 Mo. App. 520.

III.

Tbe offense created by tbe Legislature for which tbe defendant was prosecuted was a misdemeanor under tbe statute and tbe circuit court had jurisdiction. Section 6800 of tbe Revised Statutes of 1899'provides'for tbe taking of a census, and enacts “that any person failing or refusing to comply with this section, or any person who shall make a false return, shall be deemed guilty of a misdemeanor, and shall be punished by fine of not less than ten dollars or more than one hundred dollars, and may be ousted from office. This section shall apply to cities of the fourth class.”

The appellant contends that it is a violation of the city ordinance and not of the State law. So far as appears from the record there is no ordinance in Pierce City declaring the making of a false return to a municipal census an offense. Being so, how can it be said that the city has exclusive jurisdiction to hear and determine this case? The statute says the acts charged in the information shall be a misdemeanor and fixes the fine therefor.

It is not within the power of the Legislature to make ordinances for the cities of the State nor to fix the punishment for the violation thereof, but that authority has been delegated to the board of aldermen. The Legislature has the power, however, to declare acts of dishonesty, like swearing falsely to a return of a municipal census, a crime, and to provide a punishment therefor. This was done by section 6300 aforesaid. The Legislature has here provided that in order to ascertain the population of any city, the board of aldermen may have a census taken, and has also provided how the return shall be made and what the effect of a false return shall be. Clearly, the violation of this provision is a violation of the State law, and as it is made a misdemeanor and the punishment therefor fixed, the circuit court had jurisdiction to hear and determine this case. Section 2475, Revised Statutes 1899, provides that the circuit court and justices of the peace shall have concurrent jurisdiction of all misdemeanors, except as otherwise provided. The defendant’s act, if committed, was a misdemeanor. The provision of the statute which provides that the mayor and police judge of cities of the fourth class shall have original jurisdiction to hear and determine complaints fós^VioAtion of the city ordinances has no reference to cases of this kind, but refers exclusively to violations of city ordinances. We have been referred to no authority, in the statutes or in the decisions of the courts, giving police courts the power to hear and determine informations for misdemeanors for the violation of the State laws. There being no such law, the only courts having jurisdiction of such a case was the circuit court and the justice court, and the acts charged in the information being declared a misdemeanor by section 6300 of the Revised Statutes of 1899, the circuit court had jurisdiction to hear and determine this case.

The judgment of the circuit court is therefore affirmed.

All concur.