
    Kansas City, Appellant, v. J. P. Hallett, Respondent.
    Kansas City Court of Appeals,
    November 5, 1894.
    1. Municipal Corporations: ordinances in conflict with state statute. It is a well understood principle of the common law that the ordinances of a municipal corporation to be of any validity must be consistent with its charter and the general statutes of the commonwealth creating it. and must not be repugnant to the legislative policy of the state.
    2. -: -: penalties. The ordinance of Kansas City relating to the prohibition of the lottery business is in substantial, harmony with the statute of the state on the same subject, and the fact that such ordinance provides a more definite fine or penalty than the statute, does not create any repugnancy between them. Authorities reviewed.
    
      Appeal from the Jackson Criminal Court.—Hon. John W. Wofford, Judge.
    Reversed and remanded.
    
      C. E. Bwrnham and F. F. Rosselle for appellant.
    (1) It is fundamental that an ordinance or by-law, to be valid, “the books say:” First. Must not be inconsistent with the charter of the corporation. Second. It must not be inconsistent with the law of the state. Third. It must not be repugnant to fundamental rights. Among the powers granted the city by its charter of 1889, appear the following: “10th subdivision of section 1, of article 3, city charter of Kansas City, Missouri; 31st subdivision, section 1, article 3, General Welfare; also 32d subdivision section 1, article 3. (2) It can not be consistently contended that the corporation entrenches upon the domain of state legislation in passing the ordinance in question. That the jurisdiction is concurrent is too well settled in our state for further comment. City of St. Louis v. Bents, 11 Mo. 61; St. Louis v. Cajferata, 24 Mo. 94; Independence v. Moore, 32 Mo. 392; City St. Louis v. Shoenbusch, 95 Mo. 618; Horr & Bemis, Mun. Pol. Ord., sec. 89, p. 78; Bish.,|Crim. Law, sec. 879ffl; Bish., State Crim., secs. 23, 25. And the court first obtaining jurisdiction becomes exclusive. R. S. 4056. And a judgment in one court is a bar to any prosecution in the other. 37 Mo. 360; 68'Mo. 591. Hence the more reason why the city should be empowered to provide a penalty different from statute.
    
      Buchner, Bird é Lahe for respondent.
    (1) The ordinance in this case under which respondent was arrested is invalid, because not in harmony with, or in conformity to, section 3833 of the state law on the same subject. Sec. 16, art. 9 of the constitution; City of Warrensburg v. McHttgh, 27 S, W. Rep. 523. (2) We insist that this ordinance is not in harmony with, or consistent with, the state law because the minimum penalty is twenty-five times greater, and the maximum penalty is only one-half as great as the state law. To be in harmony with, and consistent with, the state statute it must have the same penalty. The courts have held that where the minimum penalty is greater than that fixed by the state statute, the ordinance is not in harmony with, or consistent with, the state statute upon the same subject. A different maximum penalty would be productive of as much disharmony , inconsistency and conflict as a different minimum penalty. These, both minimum and maximum, penalties differ from the state law. Peters-burg v. Grigsby, 21 111. 201; Landis v. Brough, 23 Atl. Rep. 357; Exparte Solomon, 27 Pac. Rep. 757; In re Ah Ton, 25 Pac. Rep. 971; State v. Simons, 3 Mo. Ill; State v. Pague, 1 Mo. 377; State v. Cowan, 29 Mo. 330; State v. ■ Thornton, 37 Mo. 361; Kansas City v. Clarh, 68 Mo. 590, opinion by Judge Hough; State v. Snyder, 98 Mo. 560; St. Louis v. Schoenbusch, 95 Mo. 619. In either case, if the penalty is not the same as thatfixedby the state statue it is inconsistent with, and out of harmony with, the state law and hence is void.
   Gill, J.

On the information of the city attorney defendant Hallett was prosecuted'before the police court of Kansas City for the conduct of a lottery business contrary to an ordinance of said city. At a trial before the police judge he was found guilty, flned $200, and then on the defendant’s appeal the cause was taken to the criminal court. There the court, on defendant’s motion, quashed the complaint for the alleged reason that the ordinance on which the same was founded was repugnant to, and in conflict with, the state law pertaining to the same subject-matter. The city has appealed.

There is in Kansas City an ordinance intended to suppress the sale or exposure to sale, within the city’s limits, of lottery tickets wherein the penalty for each offense is fixed at “not less than $25 and not more than $250.” There was at the passage of this ordinance, and is yet, a general statute applying to the entire state, wherein the like offense is prohibited under a prescribed penalty of a sum of “not exceeding $1,000.” Sec. 3833, R. S. 1889. The defendant successfully contended in the lower court, that the city ordinance was inconsistent with the state law and therefore void, because the punishment provided for the violation of the former was not the same as that in the latter. The correctness of that ruling is the matter for our decision.

In our opinion the trial court committed error. It is not necessary to invoke the terms of the constitution to announce that the by-laws of a municipal corporation in order to be of any validity, must be consistent with its charter and the general statutes of the commonwealth creating it. This is a well understood principle of the common law. Suich ordinances or by-laws must not be repugnant to the legislative policy of the state, as manifested by its general enactments. 1 Dill. on Municipal Corporations [4 Ed.], section 329; Tiedeman on Municipal Corporations, section 150.

The ordinance in question is in no way repugnant to the spirit and policy of the state statute relating to the same subject-matter. It is the obvious purpose of both ordinance and statute to prohibit the lottery business. They are then in substantial harmony. It is true that in order to enforce the provisions of the ordinance—to carry out the general design of suppressing such vicious and demoralizing traffic—the city authorities have seen proper to provide a more definite fine or penalty than is named in the general statute. But this does not create any repugnancy or want of harmony between the local and general legislation on the subject. If Kansas City had provided by ordinance for licensing lottery shops, and thereby pennitted the business to be conducted under the sanction of the city authorities, then clearly such ordinance would have been repugnant to, and inconsistent with, the state law, the design of which is to suppress or proMbit, and not to license. But such is not the condition of this legislation; the scope and purpose1 of statute and ordinance is the same. We do not think the mere difference in the amount of fines or penalties provided for in the city ordinance and the general statute should be deemed such want of harmony or repugnance as will invalidate the ordinance.

We find no adjudication in this state dealing with this precise question. We feel fortified in our position, however, when we discover that the question was open in numei’ous cases passed on by the appellate courts of Missouri and where it seemed conceded by court and counsel that a difference in fines or penalties for the enforcement of ordinances and statutes did not bring about such want of harmony as to render the ordinance invalid. For example, in St. Louis v. Cafferata, 24 Mo. 94, the defendant was prosecuted for the violation of a city ordinance prohibiting stores and shops to be. kept open on the Sabbath, wherein the fine was fixed at not less than $3 nor more than $100, while the punishment by the state law for the same offense was placed at a fine of not exceeding $50. On the question of alleged inconsistency between the local and general law, the court, by Judge Leonard, uses this language: “The general legislature have regulated the subject for the whole state as they deemed proper, and the city government have made such local regulations as they thought fit for the good order and peace of the city. The provisions of the two laws are different, but there is no such inconsistency between them as to annul or in any way affect the provisions of the local law.,;

In St. Louis v. Schoenbusch, 95 Mo. 618, the defendant was charged with the violation of an ordinance prohibiting cruelty to dumb animals, wherein the fine was fixed at not less than $20 nor more than $100 for each offense. In the general statute the punishment was placed at confinement in the county jail not exceeding one year or a fine not exceeding $100, or both such fine and imprisonment. It was there said, that “it is a well settled law of this state that municipal corporations may, by ordinance, prohibit acts which are misdemeanors under the general statutes of the state; and for a violation of such ordinances the city may maintain a proceeding in its own name to impose and collect a fine.” The ordinance was sustained though the punishment was quite different from that provided in the general law relating to the same subject.

In Ex parte Kiburg, 10 Mo. App. 442, City of Linneus v. Dusky, 19 Mo. App. 20, and in Kansas City v. Neal, 49 Mo. App. 72, and numerous other cases which may be found in our reports, mere discrepancies in ordinances and the general statutes relating to mode of punishment or extent of fines, were not supposed to impair the validity of such ordinances. Ex parte Kiburg, supra, was a prosecution for the same character of offense as that with which the defendant here is charged, and the St. Louis ordinance, prohibiting the running of lottery shops, was not considered repugnant to the general law, though the extent of punishment was quite different.

We find decisions in other jurisdictions in harmony with the above. In Rogers v. Jones, 1 Wend. 261, it is said: “If the legislature have passed a law regulating as to certain things in a city, I apprehend the corporation is not thereby restricted from making further regulations. Cases of this kind have occurred and never been questioned on that ground. The legislature have imposed a penalty of $1 for servile labor on Sunday; the corporation of New York has passed a by-law imposing the penalty of $5 for the same offense. Suits to recover the penalties have been sustained under the corporation law. It is believed that the ground has never been taken that there was a conflict with the state law.” See, also, Ex parte Taylor, 87 Cal. 91, where it is held, that an ordinance of a city prescribing a penalty for obstructing a street was valid and not in conflict with a general law on the same subject, although the fine was in a different sum than that named in such general statute. To the same effect is City of Pekin v. Smelzel, 21 Ill. 464, 469.

Some of the authorities cited and relied upon by defendant’s counsel might seem, at first blush, to sustain his position; but when carefully examined it will be seen that none of them go to the extent contended for. Petersburg v. Netzker, 21 Ill. 204, and Landis v. Vineland, 54 N. J. Law 75, are cases where the ordinances were held to have transcended the express limits of charters of the 'corporations. And in the two California cases (In re Ah Yon, 88 Cal. 99, and Ex parte Solomon, 91 Cal. 44) the ordinances were condemned as unreasonable and void. We fail to discover any such vice in the ordinance here in question.

The objection to the jurisdiction of the police court is not well taken. Section 4056, Revised Statutes, 1889, has no application. It is there provided that police courts in cities of fifty thousand to three hundred thousand population shall not have or exercise jurisdiction in cases of misdemeanors ilfor violation of tJie general laws of the state.” This is not a prosecution of that nature. It is an action t<p enforce a penalty for the alleged violation of a city ordinance.

The judgment then of the criminal court will be reversed and the cause remanded to. be proceeded with in accordance with this opinion.

The judges all concur,  