Ex Parte Hinkle

• Decision Date: 19 January 1904
• Citation: 78 S.W. 317,104 Mo. App. 104
• Parties: Ex parte HINKLE.
• Court: Missouri Court of Appeals

78 S.W. 317

104 Mo. App. 104

Ex parte HINKLE.

Court of Appeals at St. Louis, Missouri.

January 19, 1904.

INTOXICATING LIQUORS—LICENSE—CITIES OF THE FOURTH CLASS—AUTHORITY—ORDINANCES —VALIDITY—EXORBITANT LICENSE FEE.

1. Where an ordinance provided that no one should conduct a dramshop in the city without obtaining a license and paying a license fee, a second ordinance, which, without altering these provisions, provided regulations which must be complied with by an applicant for a license, was not inconsistent with, and did not repeal, the first ordinance.

2. Under Rev. St. 1899, § 5978, expressly permitting the mayor and board of aldermen of cities of the fourth class to license and regulate dramshops, saloons, and liquor sellers, a city of that class had authority to exact a license fee after the licensee had duly obtained from the county court a license to keep a dramshop in such city.

3. In proceedings questioning the validity of a city ordinance it will be presumed that it was legally adopted, unless it exceeds the legislative power of the city.

4. An ordinance declaring it to be unlawful for any person to carry on the enumerated occupations, including that of a dramshop keeper, without obtaining a license, the fee for which in the case of dramshops was fixed at $1,000 a year, or $500 for six months, was not objectionable for uncertainty.

5. One thousand dollars a year for a saloon license by a city of the fourth class is not so unreasonable a charge as to justify a court in declaring void the ordinance fixing it.

Application by W. J. Hinkle for writ of habeas corpus, returnable to the Court of Appeals. On hearing, petitioner remanded.

F. M. Mansfield, for petitioner. J. W. Jackson, for respondents.

GOODE, J.

The petitioner, Hinkle, procured a writ of habeas corpus from one of the judges of this court in vacation, returnable to the October term. He was at that time in the custody of the marshal of the city of Mountain Grove under a warrant issued by the mayor and ex officio police judge of that city for conducting a dramshop and selling intoxicating liquors in less quantities than three gallons without having a license to do so. The writ was granted by consent of the city authorities, and therefore without an examination of the merits of the petition, and the cause will be disposed of with no inquiry into the propriety of the proceeding as a means of testing the validity of the city ordinances relating to dramshop license. The invalidity of those ordinances is the ground on which the petitioner is averred to be unlawfully restrained of his liberty. Many averments are made in the petition against the right of the city to enact them, or to exact the license fee imposed on dramshop keepers, which will be disregarded for the reason that the parties have filed the following stipulation as embodying the essential facts on which they desire the case to be decided: "For the purpose of a trial of this cause, and in order to save cost of taking depositions, the following facts are agreed upon: That the petitioner on the 18th day of April, 1903, duly obtained from the county court of Wright county a license to keep a dramshop at his stand in the town of Mt. Grove, Missouri, for a period of 6 months from that date; that at the time of his arrest he was keeping a dramshop in the said city of Mt. Grove under and by authority of his said county license, and was selling intoxicating liquors in less quantities than 3 gallons without having a license as such dramshop keeper from the said city of Mt. Grove. That he had at no time been engaged in the business or avocation of keeping, maintaining, or conducting a saloon other than that of his said dramshop. That on the ____ day of June, 1903, the petitioner was, by virtue of a warrant issued by the respondent, Rose, as mayor and acting police judge of said city, upon a complaint made by the said John A. Stephens, charging him with unlawfully carrying on and engaging in...