Town of Knox City v. Whiteaker

87 Mo. App. 468 | Mo. Ct. App. | 1901

BOND, J.

The plaintiff is a village, incorporated in pursuance of the provision of article 6, chapter 91, Revised Statutes 1899. It adopted an ordinance inhibiting any person from selling intoxicating liquors in less quantities than one gallon without the obtention of a license as a dramshop-keeper, pursuant to the further provision of said ordinance, under a penalty of not less than $50 and not more than $100 for each offense. The ordinance further defined a dramshop-keeper to be a person licensed under its provisions, and prescribed fully the method of applying for and obtaining such license, and prohibited, in the place of business of such person, the use of any gambling devices, or the sale of intoxicating liquors on Sunday. Upon complaint of the marshal of said village, charging the defendant with the violation of this ordinance, the chairman of the board of trustees of the plaintiff village caused the defendant to be brought before him for trial and imposed a fine of $100 and costs. From this sentence defendant appealed to the circuit court. On the trial there, evidence was given tending to show that defendant had sold whiskey in the plaintiff village, in less quantities than one gallon within one year previous to his arrest. It was further shown that the defendant was a merchant, doing business under a merchant’s license, which covered the time within which such sale was made. The court gave a peremptory instruction to the jury to bring in a verdict of acquittal. Erom a verdict and judgment in accordance, plaintiff has appealed to this court.

I. It has been repeatedly decided by the appellate courts of this State that the statutes governing the three callings of dramshop-keeper, merchant and druggist are preclusive and that prosecutions for the violation of the liquor laws must be brought against the offending party under the respective statutes governing his particular calling. State v. Williams, 69 Mo. App. 284; State v. Williams, 69 Mo. App. 286; State v. Witty, 74 Mo. App. 550; State v. Gibson, 61 Mo. App. l. c. 371; State v. Piper, 41 Mo. App. 160; State v. Ryan, 30 Mo. App. 159.

It is argued by the learned counsel for appellant that the doctrine of these cases is inapplicable to the one at bar, because the general statutes regulating villages of the class to which plaintiff belongs empowers them “to regulate and prohibit the sale or giving away of intoxicating liquors under merchants’ licenses in such towns.” R. S. 1899, sec. 6010. It may be conceded that plaintiff had full authority under this legislative grant to enact any and all ordinances on the subject of sales of liquor under merchants’ licenses which should be congruous with the general statutes and laws of the State, applicable to that subject. For, within the limits of consistency with the paramount laws of the State, any of its delegated agencies, in pursuance of charter powers, have full authority to make regulations by ordinances which shall be equally binding upon the conduct of all persons within the limits of the particular municipality. But in the case at bar, the ordinance under which the defendant was prosecuted shows on its face that it was not the exertion of the statutory power given to the plaintiff to regulate sales of liquors under merchants’ licenses, but was an attempt to provide for the exercise ■ of the distinct avocation of dramshop-keeper within the town limits. The facts in this record do not, therefore, support the premise upon which the argument of appellant’s counsel is rested. Upon a proper proceeding the respondent is clearly amenable, under the facts shown in this record, to the general statute licensing merchants to sell intoxicating liquors, since it is clear under the evidence that he was conducting his business under the authority of a merchant’s license. R. S. 1899, sec. 8563; State v. Baskett, 52 Mo. App. l. c. 393. But, being engaged in that calling, and duly licensed as such, he was not subject to.prosecution under the town ordinances purporting to define and regulate the business of a keeper of dramshops, hence, there was no error in the ruling of the lower court, and its judgment is affirmed.

All concur.