State ex rel. Fitzpatrick v. Meyers

Decision Date31 October 1883
Citation80 Mo. 601
PartiesSTATE ex rel. FITZPATRICK v. MEYERS et al., Judges of the County Court of Nodaway County, Appellants.
CourtMissouri Supreme Court

Appeal from Nodaway Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

S. R. Beech and W. C. Ellison for appellants.

Revised Statutes, section 5438, as amended by Laws of 1883, page 87, means that a dramshop petition shall be signed by two-thirds of the assessed tax-paying citizens of the city. Unless the legislature so intended, section 5438 would seriously conflict with section 5442, and a county court in many instances might be compelled to grant dramshop licenses on petitions containing less than one-half, one-third or even one-fourth of the names of the tax-payers in the block at the time of signing the petition. If the construction contended for by relator be correct, section 5438 compels all county courts to grant licenses on petitions signed by two-thirds of the tax-payers of the block, as shown by the last previous annual assessment of the city, and this will be the case although two-thirds of the tax-payers of so small a territory as a block as shown by assessment books a year or two old may not, and quite often do not, include a majority of the tax-paying citizens of the same block at the time the petition is signed. The construction which requires two-thirds of the tax-payers of the city, is the one most consistent with a rational and consistent purpose in the legislative mind. The retail liquor traffic is defined to be “a demoralizing and pauper-making business,” ( Scmidt v. State, 14 Mo. 137,) and is a mere privilege, and in determining the extent to which the privilege goes, the law should be strictly construed against the traffic.

L. Isham White, John Edwards and Johnston & Anthony for respondent.

The legislature has provided in Revised Statutes, sections 5442, 5438, as amended by the act of March 24th, 1883, (Sess. Acts, pp. 87, 88,) for two classes of petitioners as respects the number of signers: 1st, A majority petition; 2nd, A petition of two-thirds. When a majority petition is presented, the court has jurisdiction to act, and may grant a license if the applicant be qualified; when a petition signed by two-thirds of the “proper names is presented, and the applicant is qualified,” then the court shall grant such license. That is when the majority petition is presented, the courts have a discretion, and may grant or refuse the license as to them seems best, a matter of policy. When the two-thirds petition is presented, and the applicant is qualified, the court must grant the license as a matter of right; to hold otherwise would render the proviso wholly inoperative, and why should a meaningless proviso be inserted in any statute? 1 Kent, 461, 462; Rule 36, Blackwell Tax Titles, (4 Ed.) 610 side p. “The most natural and genuine way of construing a statute, is to construe one part by another part of the same statute, and so that, if possible, no sentence, clause or word shall be treated as superfluous, void or insignificant, and especially where the two clauses are parts of the same section, inseparably connected with and necessarily dependent upon each other.” State to use, etc., v. Richardson, 35 Mo. 385, 388. As the dramshop law stood prior to the amendments of 1883, the county court could not be compelled to grant license. State ex rel. Kyger v. Holt Co. Ct., 39 Mo. 521. Unless it had been the intention of the legislature to change the law, there had been no use of the proviso in section 5438, and the intention of the legislature should be carried out. State ex rel. Mo. M. L. Ins. Co. v. King, 44 Mo. 283, 285. The county court, in its final order disposing of the application of relator, Thomas Fitzpatrick, found in his favor as to every fact upon which the court heard and weighed the evidence and acted judicially. The license was refused solely on the ground that the petition filed with the clerk of the county court, December 6th, 1883, had not subscribed thereto the proper names of two-thirds of the tax-paying citizens of the whole of the city of Maryville, as shown by the last previous annual assessment of said city. Relator claims that no such petition is required by sections 5438 and 5442, of the Revised Statutes, as amended by the act of the legislature of this State, approved March 24th, 1883, (Sess. Acts 1883, pp. 86, 88,) and that said petition, containing as found and admitted in said order of the county court, the proper names subscribed thereto of two-thirds, and more of the assessed tax-paying citizens in block number 6, one of the blocks in said city, as shown by the last previous annual assessment of said city, was all that said amended sections required. If the relator's interpretation of the statute, is the true one, the error committed by the county court, is an error of law, and may be corrected by the writ of mandamus. Whenever the law vests in boards of supervisors or inferior courts, acting under statutory powers, certain prescribed duties which, in their character, are partly judicial and partly ministerial, if such tribunals have gone forward, in any given case involving the rights of the citizen, and fully performed the judicial part, the law imposes upon them an obligation to perform the ministerial part, and if they refuse to do so, whether through malice, caprice or an honest mistake of the law, if there is no other mode of relief for the party injured prescribed by law, mandamus will lie to coerce the performance of the ministerial part. People v. Board of Supervisors of Schenectady, 35 Barb. 408; Thomas v. Armstrong, 7 Cal. 286; People v. Supervisors of Otsego, 51 N. Y. 401, and 53 Barb. 564; High's Extra. Leg. Rem., (1 Ed.) § 327; Moses on Mand., pp. 41, 125, 126; Ex parte Milner, 6 Eng. Law and Eq. Rep. 371; People v. Perry, 13 Barb. 206. And even with respect to courts of general and common law jurisdiction, where the judgment on a question of law is wrong, and no remedy exists by appeal or writ of error, mandamus will lie, and in such proceeding the court having jurisdiction to issue the writ will interpret the law correctly, and prescribe what judgment therein should be given by the court to which the writ is directed. State ex rel. Harris v. Laughlin, 75 Mo. 358; Castello v. St. Louis Circuit Ct., 28 Mo. 259; Ex parte Cox, 10 Mo. 742; State ex rel. Webster v. Knight, 46 Mo. 83.

The alternative writ properly directed the judges of the county court, as a county court, to fix and assess the tax prescribed by section 5441, of the Revised Statutes as amended. That matter was to be determined without evidence. The clerk of the county court fixed it in vacation, under section 5446 of Revised Statutes. Said section 5441 is mandatory. It reads: “Upon every such license there shall be levied a tax not less than $25, nor more than $200, for State purposes, not less than $250, nor more than $400 for county purposes, for every period of six months; the amount of tax in every instance to be determined by the court granting the license. Act of March 24th, 1883, amending section 5441, Sess. Acts 1883, p. 87. In fixing the amount of the tax, within the limits of the law, the judges of the county court act ministerially, as would the clerk in vacation. If so, their duty is clearly defined by the law, and they must perform it. State ex rel. Adamson v. Lafayette Co. Ct., 41 Mo. 221; State ex rel. Jackson v. Co. Ct. of Howard Co., 41 Mo. 247; State ex rel. School District v. Byers, 67 Mo. 706; High's Extra. Legal Rem., (1 Ed.) § 80.

NORTON, J.

This is a proceeding to compel the county court of Nodaway county, Missouri, by the writ of mandamus, to issue a dramshop license to the relator.

On the 6th day of December, 1883, the relator, Thomas Fitzpatrick, filed with the clerk of the county court of Nodaway county, Missouri, under sections 5438 and 5442 of the Revised Statutes, a petition asking that a license be granted to him to keep a dramshop in his place, being a room on the ground floor in a certain brick building, having a frontage of twenty-two feet, situated on the east one-third of lot 2, in block 6, in the original town (now city) of Maryville, in Nowaway county, Missouri. This petition had subscribed thereto the proper names of two-thirds and more of the tax-paying citizens of said block, as shown by the last previous annual assessment of said city. At the adjourned term of the court of Nodaway county, held December 10th, 1883, said petition was laid before said county court, and relator made and filed his application as required by section 5438 of the Revised Statutes. This application was accompanied by the bonds required by sections 1601 and 5440 of said statutes, and certified copies of the affidavits required by sections 1601 and 1605 of said statutes, showing that the originals had been properly made and filed with the county clerk, and by a verified statement of liquors on hand, as required by se tion 5439 of said statutes. The application was heard by the county court December 10th, and continued to December 11th, 1883, at which last named date the county court made a final order in the matter.

In this order the county court finds that the relator is a person of good character; that the bonds and affidavits...

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43 cases
  • State v. Wurdemann
    • United States
    • Missouri Court of Appeals
    • April 7, 1914
    ...speaking for our Supreme Court, discussed the question of mandamus at considerable length, referring particularly to State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601. The Meyers Case was a proceeding by mandamus, to compel the county court of Nodaway county to issue a dramshop license to the......
  • State ex rel. Lashly v. Wurdeman
    • United States
    • Missouri Court of Appeals
    • April 7, 1914
    ...speaking for our Supreme Court, discussed the question of mandamus at considerable length, referring particularly to State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601. Meyers case was a proceeding by mandamus, to compel the county court of Nodaway county to issue a dramshop license to the rel......
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    ... ... Chase, 43 Mo.App. 343; State v. Francis, 95 Mo ... 44; State v. Hoblitzelle, 85 Mo. 620; State v ... Garesche, 65 Mo. 480; State v. Meyers, 80 Mo ... 601; State v. Berg, 76 Mo. 136; State v. St ... Louis School Board, 131 Mo. 505; State v. Joplin ... Water Works, 52 Mo.App. 312; ... ...
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