City of Kansas v. Flanders

• Decision Date: 31 October 1879
• Citation: 71 Mo. 281
• Parties: THE CITY OF KANSAS, Appellant, v. FLANDERS.
• Court: Missouri Supreme Court

71 Mo. 281

THE CITY OF KANSAS, Appellant,

v.FLANDERS.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Jackson Criminal Court.--HON. H. P. WHITE, Judge.

REVERSED.

Wash. Adams for appellant.

Respondent not represented.

SHERWOOD, C. J.

Defendant was brought before the city recorder, charged with keeping a dramshop contrary to city ordinance, convicted, and appealed to the criminal court of Jackson county, in which court the cause was submitted on an agreed statement of facts, to the effect that defendant, at the time specified in the complaint, had a license from the county, but none from the city, though the previous year he had a license from the city; that he presented to the auditor of the city a petition signed by a majority of the tax-paying citizens in the block and square in which the dramshop was located, tendered the requisite amount and demanded a license, which the auditor refused to issue. Upon this agreed statement a declaration of law in the nature of a demurrer to the evidence was given, and the defendant adjudged not guilty.

The question thus presented is whether the defendant, having admitted an infraction of the ordinance of the city, is entitled to be held guiltless and discharged from all punishment. The facts being admitted, the case hinges on the validity of the ordinance, and this, in turn, rests upon the terms and provisions of the city charter. An examination of those provisions leaves no doubt as to the power of the city to pass suitable ordinances for licensing dramshops, and an inspection of the ordinance, as preserved in the bill of exceptions, leaves no doubt that this power has been duly exercised.

The fact that a county license for keeping a dramshop in a city may issue upon petition of a “majority of the taxpaying citizens,” in the block or square wherein the dramshop is to be located, (1 Wag. Stat., § 8, p. 551,) by no means militates against the right of the city to issue license also. If the city cannot do this, then confessedly, the rights and powers conferred by the charter, and the ordinances of the city passed in pursuance thereof, are indeed but vain and nugatory. The power of cities to license dramshops has never before been questioned in this State; on the contrary, has been frequently, though indirectly, recognized. State v. Harper, 58 Mo. 530, and cases cited.

It can not be ascertained from the ruling of the criminal court, whether that ruling was based on the invalidity of those sections of the ordinance requiring a person to take out a license to keep a dram shop and imposing a fine for failure in this regard, or whether that ruling had its origin in the opinion that section 54 of the ordinance requiring a person desiring a license for such a purpose, should first obtain “the written consent of a majority of the property owners within the block or square,” was in conflict with the provisions of section 8 of the General Statutes, before noted.

1. CITY DRAMSHOP LICENSE IN KANSAS CITY: mandamus.

If those sections requiring a license to be obtained, and punishing any default in this particular, are to be held valid, and we, on inspection of the charter of the city, have not the slightest reason to doubt their validity, then it...