(1) Warrant may be issued on a complaint without information in fourth class city unless offense is traffic offense. (2) Warrant cannot be issued for traffic offense without information in fourth class city. (3) Not necessary for city attorney in fourth class city be present in court in absence of an ordinance.

FOURTH CLASS CITIES: TRAFFIC OFFENSES: CITY ORDINANCES: COMPLAINTS AND INFORMATIONS: (1) Warrant may be issued on a complaint without information in fourth class city unless offense is traffic offense. (2) Warrant cannot be issued for traffic of- fense without information in fourth class city . (3) Not n~~essary for city attornej in fourth class city be present in court in absence of an ordinance . OPINION NO. 24 135 (1967) January 23, 1968 FIL E 0 Honorable Jack E. Gant State Senator, 16th District 9517 East 29th Street Independence, Missouri 64052 Dear Senator Gant: J.Y. This is in answer to your request for an opinion from this office as follows: "1. When a compl aint is signed, wither by a police officer or a private citizen-seeking the ussance of a warrant by the police judge of a 7ourth class city, is it necessary that the city attorney or special counsel make an in- vestigation and file an information with the judge prior to the issuance of a warrant by the judge? "2. Is it necessary that the city of the fourth class have a lawyer present to serve as prosecutor whenever the police judge holds court?" In substance, your first question is whether a warrant may be issued for the arrest of a person accused in a complaint of viola ting a city ordinance of a fourth class city before investigation is made by the city attorney and an information filed by him. The practice and procedure in all municipal courts of this state is governed by Supreme Court Rule 37. Under this Rule different procedures are provided for, for prosecuting persons for traffic violations as distinguished from persons violating other municipal ordinances. We will first consider the Rules governing cases other than traffic cases. Honorable Jack E. Gflnt Supreme Court Rule 37. 06 provides: ".i\11 municipal ordinance violations shall be prosecuted by information or complaint , which- ever is required by law, in the form and manner hereinafter provided ." Under thi s Rule a person may be prosecuted for violatin~ a city ordinance on Cl complaint l·Jithout a formal information, if it i s pro- vided for by law. The question then arises , whether under the l aw a person viol2tinG a municipal ordinance may be prosecut ed on a complaint without an information being fil ed . Section 98. 530, RSMo 1959, which applies t o cities of the fourt h clas r. , provides : "All prosecutions for the violation of city ordinances shall be ent itl ed 'The city of against ' ( naminc the city and the person or persons charged ) , and the mayor or police judge shall stat e i n his docket the name of the compla i'nant , the nature and character of the offense , the date of the trial , t he names of all wi tnesses ~worn and examined , the findin~ of the court or jury, the judgment of fine and costs , the date of the payment, the date of issuing commitment , i f any, and every other fact necessary to show the full proceedings in each case. The com- plaint, when made by the marshal or any policeman against any person arrested without process and in custody, shall be reduced to writing and sworn to by such officer before such person shall be put upon his trial . In no case shall a judgment of conviction be rendered except when sufficient legal testi mony is given on a public trial or upon a plea of guilty made in open court . " The above statute was construed by the court in Citl of Richland v . Null, 194 Mo . App . 176, 185 s.w. 250. This statutes I n subs t antially ~same l anguage as it l>~as when this case was deci ded, and the court held that under this statute a warrant coul d be i ssued and prosecution had for violation of a city ordinance i n a fourth class city on a complaint, without an information being f iled. Supreme Court Rul e 37. 08 provides : "A compl a int of the conuni ssion of an offense , veri- fied by oath or affirmation, may be filed \d th the judge or court having jurisdiction of the all eged - 2- Honorable Jack E. G~nt offense and if the prosecutor is authorized to pro- secute on such com laint wi thout filing an information, or if an i ormation sha e e ereon y e prosecutor, or \'li thout a complaint by the prosecutor, the judge of such court , or the clerk when so authorized by law if a complaint or i nformation is filed by the prosecutor , shall immediately issue a warrant for the arrest of t he accused directed to any officer authori zed by l aw to execute it, if such accused has not been taken into custody on summary arrest . The prosecutor shall be promptly informed of any complaint filed whether or not a warrant has been issued thereon. After an investigation, if the pro- secutor is satisfied that there are reasonable grounds to believe that an offense has been committed and that a case against the accused can be made , he shall file an information \'lith the judge or court founded upon or accompanied by such complaint , or prosecute such offense on said complaint if authorized by la\'1 to prosecute thereon vii thout filing informa- tion. All Traffic Cases shall be prosecuted in these Rules as to Traffic Cases . " (Empha sis supplied . ) It is the opinion of the department that under the Rules of the Supreme Court and under the law, a v1arrant may be issued for the arrest of a person on a compl aint for violating a municipal ordinance in a fourth class city, without a formal information being filed.unless the offense is a traffic offense; the procedure for which is governed by other Supreme Court Rul es as hereinafter discussed . Supreme Court Rule 37.08, supra , expressly provides that all traffic cases shall be prosecuted by information or complaint in the form provided in these Rules for traffic cases . Supreme Court Rules 37.46 to 37.50 govern the procedure and prac- tice for traffic court cases . Supreme Court Rul e 37.46 provides that in traffic cases the com- ~laint or information and summons shal l be in the form known as the 'Uniform Traffic Ticket" , substantially as the same i s set out in Rule 37.1162 . It provides the Uniform Traffic Ticket shall consist of four parts : (1) the complaint or information printed on white paper; (2) the abstract of court record for state licensing authority which shall be a copy of the complaint or information printed on yell ow· paper; ( 3) the police record which shall be a copy of the in- formation printed on pink paper; and (4) the summons printed on white color; the reverse side shall be set out in said fonnwith such addi- tions or deletions as are necessary to adapt the Uniform Traffic Ticket to the jurisdiction tnvolved . The notice of appearance, plea of guilty and waiver , shall be printed on the summons . -3- Honorable Jack E. Gant The forms for the Uniform Traffic Ticket are set out in Rule 37.1162 and are to consist of four separate sheets of paper as re- quired by Rule 37. 46 with certain questions printed thereon with the space for the answers to be filled in by the officer, and for certain information to be recorded thereon of the facts concerning the offense with which the accused is charged . These forms are printed in quadruplicate with the reverse side for each copy for recording certain information thereon, including court proceedings and other information. Space is provided in the forms for the officer to insert in the Summons the court time and place the ac - cused is summonsed to appear . On the reverse side of the "Summons" provision is made for the accused to sign a statement entering his appearance and pl ea of guilty to the offense as charged "on the complaint [or information] . " Attention is called to the fact that provision is made on this form for the accused to enter a plea of guilty to a complaint as well as to an information, if one has been filed . Supreme Court Rule 37.48, provides in part as follows : "(a) The court may direct the is suance of a warrant for the arrest of any resident of this state, or any nonresident upon \'lhom process may be served in this state, who fails to ap- pear and answer a traffic ticket or summons lawfully served upon him and against whom an information has been filed by the pro~er pro- secuting attorney or city attorney . uch warrant may be directed to any peace officer of the state and may be executed in any county in this state . " (Empha sis supplied) Under this rule if the accused fail s to appear as provided in the summons "and against whom an information has been filed by the prosecuting attorney or city attorney" the court may issue a warrant for arrest . Attention is called to the fact that under this Rule an information must be filed before a warrant for arrest can be issued by the court . In City of Elvins v . DePriest, 398 S.H.2d 22 , the St. Louis Court of Appeals reversed a conviction of a pers on charged with an improper display of a city auto license on his car, in violation of a city ordinance . The Uniform Traffic Ticket had not been used and no S\'lorn complaint or information had been filed. The prosecution was based on a traffic ticket used by the City of Elvins and merely si gned by the city marshal , v..rithout oath. In Kansas City v. Asby, 377 S. W.2d 511, the Kansas City Court of Appeals hel d t hat a Unif~rm Traffic Ticket signed by a police officer for a violation of a city ordinance was not sufficient to -4- Ho~orable Jack E. Gant sustain a conviction, for the reason that a city o~dinance of Kansas City requires all prosecutions for ordinance violations to be com- menced by filing of an infor mation, signed by the city counselor or his assistant . The court cited that portion of Rule 37.1162 which provides: "Such form to be used as is applicable and in accord with the law of the particular jurisdiction. " ·The court cited City of Kansas v. O' Connor, 36 Mo . App . 594, which held that under the ordi- nances of the City of Kansas , a warrant for arrest could be issued for a viol ation of a city ordinance , based on a complaint of any person, but under the ordinances a prosecution may be had only after an information has been filed by the city attorney . It is our opinion that the above cases must be considered as authority only on the facts existing in the cases, and are not controlling or authoritative on the question now under considerationo It is the opinion of this office that a warrant for the arrest of a person for violating a municipal traffic ordinance in a fourth class city cannot be issued until after an information has been filed by the city attorney. In your second question you inquire whether it is necessary for the city attorney in a fourth class city to be present to serve as prosecutor when the police judge holds court. Section 79 .230, RSMo, \'rhich applies to cities of the fourth class, provides that the mayor, with the approval of the board of aldermen, shall have power to appoint a city attorney, or employ special counsel. Section 79 .290, RSMo, provides that the duties , powers and privileges of city officers, unless otherwise defined, shal l be prescribed by ordinance. There is no statute that defines the powers, duties and authority of a city attorney in a fourth class city . It is the opinion of this office that in the absence of a city ordinance it is not necessary for the city attorney in a fourth class city be present to serve as prosecutor when the police court is in session. CONCLUSION It · is the opinion of this office that : 1. Under the law and Rules of the Supreme Court , a warrant may be issued for the arrest of a person on a complaint for viol ating a municipal ordinance in a fourth cl ass city without formal informa- tion being filed , unl ess the offense charged is a traffic offense. -5- Honorable Jack E. Gant 2 . A warrant for the arrest of a person for violating a munici- pal traffic ordinance in a fourth class city cannot be issued until after an information has been filed . 3. In the absence of a city ordinance it is not necessary for the city attorney in a fourth cl ass city to be present to act as prosecutor when the police court i s in session. The foregoing opinion, which I hereby approve , was prepared by my Assistant , Moody Mansur . Attorney -6-