State v. Weeks

• Decision Date: 19 December 1887
• Parties: STATE ex rel. SHARP v. WEEKS et al., Judges, etc.
• Court: Missouri Supreme Court

6 S.W. 266

93 Mo. 499

STATE ex rel. SHARP v. WEEKS et al., Judges, etc.

Supreme Court of Missouri.

December 19, 1887.

1. MANDAMUS — PROCEEDINGS — ISSUE OF WRIT IN VACATION.

Rev. St. Mo. § 3254, providing that a judge may issue a writ of mandamus in vacation, does not infringe upon Const. Mo. art. 6, § 3, giving the supreme court power to issue such writs, and the writ will not be quashed merely because issued in vacation.

2. SAME — TO COMPEL ISSUING OF LIQUOR LICENSE — PENDENCY OF INDICTMENT FOR ILLEGAL SALES.

Where, after an application for a writ of mandamus to compel a county court to issue a license to the relator to keep a saloon, it appeared that indictments had been found against the relator for selling liquor to minors, and allowing gambling in his saloon, it would be an unwise exercise of the powers of the court to issue the writ until the indictments were disposed of favorably to the relator.

Application for mandamus.

The state of Missouri ex rel. R. M. Sharp applied for a writ of mandamus to compel Weeks et al., judges, etc., of Jasper county court, to issue a saloon license to Sharp.

McReynolds & Halliburton, Harding & Buller, and W. T. Green, for petitioner. W. M. Robinson, for respondent.

SHERWOOD, J.

This is an original proceeding in this court, its object being to compel the county court of Jasper county to issue a license to the relator, Sharp, to keep a saloon in the city of Carthage.

1. The alternative writ of mandamus was issued by a member of this court in vacation, returnable to this term. A motion, based on that ground, has been filed to quash the writ. The statute authorizes a judge of this court to issue such a writ in vacation. Rev. St. § 3254. This statutory provision does not impinge upon section 3 of article 6 of state constitution. If, however, such a writ should be issued in manner as aforesaid, and the judges of this court should determine that it had been improvidently issued, this might result in the writ being quashed; but this result would not follow merely because the writ was issued in vacation. The motion to quash, in this instance, is therefore denied.

2. The return of the respondents set forth, among other things, that, "on the fourteenth day of October, 1887, and after the service of the alternative writ herein, there was filed with the county court of Jasper county, then in regular session, of which said court the defendants are the judges, a certified copy of an indictment found by the grand...