State ex rel. Barnett v. Sappington, 22057

• Decision Date: 05 April 1954
• Docket Number: No. 22057,22057
• Citation: 266 S.W.2d 774
• Parties: STATE ex rel. BARNETT v. SAPPINGTON et al.
• Court: Missouri Court of Appeals

Page 774

266 S.W.2d 774

STATE ex rel. BARNETT v. SAPPINGTON et al.

No. 22057.

Kansas City Court of Appeals, Missouri.

April 5, 1954.

Carl F. Sapp, Columbia, for appellant.

L. W. Byars, Columbia, for respondents.

BROADDUS, Judge.

This is a proceeding in mandamus wherein relator, Cecil Barnett, seeks to obtain a peremptory writ against respondents commanding them to issue a permit for the sale of intoxicating liquor in the original package. After a hearing, the trial court quashed the alternative writ. Relator appealed to the Supreme Court. That court held that it was without jurisdiction because no constitutional question had been sufficiently raised or preserved, and transferred the case to this court. See State ex rel. Barnett v. Sappington, Mo.Sup., 260 S.W.2d 669.

Relator owns and operates a drug store located at 901 West Broadway in the City of Columbia. Respondents are members of the City Council of that City. Prior to May 19, 1952, relator did not have a license to sell and did not sell intoxicating liquor in the original package in his drug store. He made application to the City Council for such license, and on May 19, 1952, said application was rejected. Subsequently, relator made further application to respondents for said license and this too was denied on June 9, 1952.

On May 6, 1935, the City of Columbia enacted zoning ordinances. These are sections 1156 to 1183 of the general ordinances of that City. These zoning ordinances divide the City into 7 districts as follows: 'District A. First Dwelling District; District B, Second Dwelling District; District C, Apartment District; District D, Local Business District; District E, Highway Business District; District F, Central Business District; District G, Light Industrial District.' Section 1163 of those ordinances was amended on June 19, 1951, further restricting the permissive uses of buildings, structures, land or premises in District D. Relator's drug store is located in District D.

The above ordinances were in full force and effect at the time relator made his two applications for the package liquor license and at that time the said applications were denied by respondents on May 19, 1952, and June 9, 1952, respectively.

After Section 1163 was amended on June 19, 1951, the permissive uses in District D (in which relator's drug store is located) were enumerated as follows: 'a. Residential uses permitted in Districts A and B. (b) Neighborhood retail store for the sale of groceries, meats, milk products and drugs, * * *.'

Respondents' return to the writ alleged that the sale of intoxicating liquor is a permissive use of buildings and structures located in Zoning Districts E, F and G, but is not a permissive use in Districts A, B, C and D; and that District D contains separate areas dispersed in residential districts of the City. Relator's reply denied only that the sale of intoxicating liquor in the original package is not a permissive use of the buildings and structures located in District D.

Respondents admit that relator is a person of good moral character and possesses the necessary qualifications to sell intoxicating liquor by the package under the intoxicating liquor ordinances of the City, but assert that his applications were denied for the reason that the sale of intoxicating liquor is not a permissive use of premises located in District D, under the Zoning Ordinances.

The position of relator is 'that he operates a drug store as is permitted by Section 1163 (of the zoning ordinances); that he meets all the other requirements for moral character, location, etc., and that he is entitled to a license to sell liquor in the original package in connection with his drug store business as permitted by Section 363.3(h) of the intoxicating liquor ordinances of the City of Columbia, Missouri, and the laws and statutes of the State of Missouri.' He says 'he is entitled as a matter of right to have a license.' The section of the statute on which he relies is 311.200 RSMo 1949, V.A.M.S. We will set it out later.

Chapter 89, RSMo 1949, V.A.M.S., empowers cities, having a population of 10,000 inhabitants or over, to enact zoning ordinances for the purpose of promoting health, safety, morals and the general welfare of the community and, among other things, to regulate the location and use of buildings, structures and land for trade, industry, residence or other purposes.

Pursuant to the authority granted by the State, the City of Columbia enacted its original zoning ordinances on May 6, 1935. These zoning ordinances made comprehensive regulation of the use of land and structures throughout the City and, as stated, divide the City into 7 separate zoning areas. Under the Supreme Court's opinion in the instant case, the validity of these ordinances is not now in question.

The language of these zoning ordinances in enumerating uses of land is permissive rather than restrictive. This method of ordinance writing is well recognized. As stated in McQuillin, Municipal Corporations, 3rd Ed. Vol. 8, Sec. 25.124: 'Zoning ordinances may be permissive in form, permitting specified uses and buildings and prohibiting all others within a district, or they may be prohibitive in form, prohibiting specified uses and buildings and permitting all others * * *. Thus, an argument that an ordinance should have listed prohibited uses in a residential district,...