State ex rel. Hewlett v. Womach

• Decision Date: 09 September 1946
• Docket Number: 39828
• Citation: 196 S.W.2d 809,355 Mo. 486
• Parties: State of Missouri ex rel. Jesse Lee Hewlett and Roy Hewlett, Co-partners, Doing Business as Hewlett & Son Food Market, Relators, v. Ruel N. Womach (substituted for Herschel Bennett), Commissioner of Revenue of the City of Springfield, Missouri
• Court: Missouri Supreme Court

196 S.W.2d 809

355 Mo. 486

State of Missouri ex rel. Jesse Lee Hewlett and Roy Hewlett, Co-partners, Doing Business as Hewlett & Son Food Market, Relators, v. Ruel N. Womach (substituted for Herschel Bennett), Commissioner of Revenue of the City of Springfield, Missouri

No. 39828

Supreme Court of Missouri

September 9, 1946

Rehearing Denied October 14, 1946.

Original Proceeding in Mandamus.

WRIT DENIED.

J Weston Miller and Miller & Fairman for relators; Ethan A. H. Shepley and Fred M Switzer, Jr., of counsel.

(1)Respondent's refusal to issue the license applied for by relators was not based upon a lawful exercise of discretion, but to the contrary, was based upon an illegal and void city ordinance.In such case, mandamus is the proper remedy.State ex rel. Kelleher v. St. Louis Public Schools,134 Mo. 296, 35 S.W. 617;State ex rel. Klein v. Hughes,351 Mo. 651, 173 S.W.2d 877;State ex rel. Wyatt v. Ashbrook,154 Mo. 375, 55 S.W. 627;State ex rel. Johnston v. Lutz,136 Mo. 633, 38 S.W. 323;State ex rel. v. Reynolds,121 Mo.App. 699, 97 S.W. 650;Bakersfield News v. Ozark County,92 S.W.2d 603, 338 Mo. 519;State ex rel. Stoecker v. LeMay Ferry Sewer District,332 Mo. 965, 61 S.W.2d 724;State ex rel. North & South Ry. Co. v. Meier,143 Mo. 439, 45 S.W. 306;State ex rel. Nolen v. Nelson,310 Mo. 526, 275 S.W. 927.(2) Such power as the City of Springfield may have to regulate and control the sale of beer in the package by a grocer, is derived from and subject to the Liquor Control Act of Missouri and amendments thereto, and the city's ordinances must not be inconsistent with said act.Bardenheier Wine & Liquor Co. v. St. Louis,345 Mo. 637, 135 S.W.2d 345;City of St. Louis v. Tielkemeyer,226 Mo. 130, 125 S.W. 1123;State ex rel. Spencer v. Anderson,101 S.W.2d 530;Fischbach Brewing Co. v. St. Louis,231 Mo.App. 793, 95 S.W.2d 335.(3) In construing a statute, the cardinal rule to be followed is to arrive at the intent and purpose of the Legislature in enacting the statute.St. Louis & S.F. Ry. Co. v. Gracy,29 S.W. 579, 126 Mo. 472;Logan v. Matthews,52 S.W.2d 989, 330 Mo. 1213;State ex rel. Buchanan County v. Imel,219 S.W. 634, 280 Mo. 554;State v. Clarke,54 Mo. 17;State ex rel. Major v. Ryan,133 S.W. 8, 232 Mo. 77;Fischbach Brewing Co. v. St. Louis,95 S.W.2d 335, 231 Mo.App. 793.(4)Section 1 of General Ordinance 363 of the City of Springfield is inconsistent with the Liquor Control Act, in that it attempts to make the compliance with local rules a condition precedent to the granting of a local license and to the exercise of relators' privilege to sell package beer, which privilege has been granted relators by the State of Missouri.State v. Wipke,345 Mo. 283, 133 S.W.2d 354State ex rel. Knese v. Kinsey,314 Mo. 80, 282 S.W. 437;State ex rel. McIntire v. City Council of the City of Libby,82 P.2d 587;McCarten v. Sanderson,109 P.2d 1108;State ex rel. Wiley v. District Court,164 P.2d 358;Spisak v. Village of Solon,39 N.E.2d 531;Apperson v. Hartford Accident & Indemnity Co.,54 N.E.2d 571;Walgreen Co. v. Garland,45 N.E.2d 545, 316 Ill.App. 635;City of Miami v. Kichinko,22 So.2d 627;Brackman's Inc. v. City of Huntington,27 S.E.2d 71.(5)Section 1 of the ordinance limiting the number of licenses is in derogation of the public policy of the State as expressed in Section 22 of the Liquor Control Act, and contrary to legislative intent of the act.Fischbach Brewing Co. v. St. Louis,231 Mo.App. 793, 95 S.W.2d 335;City of Miami v. Kichinko,22 So.2d 627.(6)Section 3 of Ordinance Number 363 also is inconsistent with the Liquor Control Act, in that it attempts to make compliance with local rules a condition precedent to the granting of a local license and to the exercise of the relators' privilege to sell beer, which privilege is granted by the State.(7)Section 3 of General OrdinanceNo. 363 is an attempt to delegate legislative power of the city, if it has any power in the premise at all, to individuals, or groups of individual property owners, and this it cannot do.Nor is such section a lawful exercise of any zoning power the city may have.City of St. Louis v. Russell,22 S.W. 470, 116 Mo. 248;Hays v. Poplar Bluff,263 Mo. 516, 173 S.W. 676;State v. Schwartz,336 Mo. 932, 82 S.W.2d 63;State v. Christopher,317 Mo. 1179, 298 S.W. 720.(8)Section 3 of the Ordinance in question violates public policy as expressed in the Liquor Control Act, and is inconsistent with the intent of the Legislature in passing the act.State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877.

Theodore Beezley, W. D. Tatlow and Nat W. Benton for respondent.

(1)The Legislature meant to include 5% beer to be sold "in the original package" in its use of the term "all intoxicating liquors," as to which it conferred the power upon cities to license, regulate and control.Sec. 4894, R.S. 1939.(2) The term "regulate" includes ordinarily the means to adjust, order or govern by rule, or established mode.Regulation is comprehensive enough to cover the exercise of authority over the whole subject to be regulated.Marsh v. Bartlett,343 Mo. 526, 123 S.W.2d 737;Sluder v. St. Louis Transit Co.,189 Mo. 107, 88 S.W. 648;City of St. Louis v. Howard,119 Mo. 41;Southern Railroad v. Russell,133 Va. 292, 112 S.E. 703;People v. Schneider,139 Mich. 673, 103 N.W. 172.(3) The power to regulate and control conferred upon cities by said Section 4904 is plain and unambiguous, and comes within the rule repeatedly announced by this court, that where the language of the statute is plain and unambiguous it must not be construed, it must be given effect as written.In other words, the language of the act is conclusive of the intention of the Legislature where there is no ambiguity.St. Louis Amusement Co. v. St. Louis County,347 Mo. 456, 147 S.W.2d 667;State ex rel. v. Lucas,348 Mo. 286, 153 S.W.2d 10;St. Louis v. Unemployment Comp. Comm.,348 Mo. 1153, 159 S.W.2d 249;State ex rel. v. Phillips Petroleum Co.,349 Mo. 360, 160 S.W.2d 764;State ex rel. v. Hughes,173 S.W.2d 877;State v. Hallenberg,341 Mo. 771, 108 S.W.2d 398.(4) Every sentence, phrase or word in the statute should be given some meaning if reasonably possible.Norberg v. Montgomery,351 Mo. 180;State v. Wipke,345 Mo. 283, 133 S.W.2d 345;Graves v. Little Tarkio Irrigation Dist.,345 Mo. 557;State ex rel. v. Padberg,346 Mo. 1133, 145 S.W.2d 150;State v. Weatherby,350 Mo. 741, 168 S.W.2d 1048.(5)The statute cannot say in express and unambiguous terms that the city has the power to regulate package sales and by implication that the city has no such power.The plain words of the statute control as to the legislative intention.Wallace v. Woods,340 Mo. 452, 102 S.W.2d 91.(6) City can limit the number of licenses.Thielen v. Kostelecky,124 A.L.R. 820, and note at p. 826.(7) The fixing by ordinance of a reasonable number of licenses that can be issued is not the exrecise of a power to prohibit (which the city does not claim to have and has not attempted to exercise).On the contrary it recognizes the right to engage in the business, and is in no sense a prohibition, as the relators seem to contend.

David M. Proctor, City Counselor, and John J. Cosgrove, Assistant City Counselor, for Kansas City, Missouri, amicus curiae.

(1) By Liquor Control Act, municipalities have been granted power to limit the number of places where package beer may be sold.Sec. 4904, R.S. 1939;Thielen v. Kostelecky,287 N.W. 513, 124 A.L.R. 820;State ex rel. Russell v. Beattie,16 Mo.App. 131;Churchill v. Common Council of Detroit,116 N.W. 558, 153 Mich. 93;City of Tacoma v. Keisel,124 P. 137, 68 Wash. 685, 40 L.R.A. (N.S.) 757;In re Siracussa,212 N.Y.S. 400, 125 Misc. 882.(2) Issuance of liquor licenses conditioned upon the consent of a certain proportion of the property owners within a given block or area is valid.Sec. 4904, R.S. 1939;Wilhout v. City of Springfield,171 S.W.2d l.c. 100;Ex parte Marsh v. Bartlett, 343 Mo. l.c. 540.

Leedy, J. Douglas, Hyde, and Tipton, JJ., concur; Ellison, J., and Clark, C.J., dissent.Gantt, J., absent.

OPINION

LEEDY

The question presented is the validity of those provisions of Secs. 1and3 of General OrdinanceNo. 363 of the City of Springfield which, respectively, limit the number of places at which intoxicating liquor may be sold within the city, and require the applicant for a license "for the sale of intoxicating liquor or for the sale of 5% beer, in any form" within the defined residential district to present a petition bearing the signatures of 75% of the property owners within a radius of 600 feet of the proposed location "consenting to the establishing of such place of business and consenting to the granting of a license therefor."

Relators are now, and for a number of years have been engaged in the business of operating a grocery store in Springfield.They have a state permit or license, issued by the supervisor of liquor control, authorizing them to sell in the original package direct to consumers but not for resale, malt liquor containing alcohol in excess of 3.2% by weight and not in excess of 5% by weight.General OrdinanceNo. 384 of the City of Springfield requires that every person engaged in the occupation of selling such malt liquor at retail, in the original package, shall pay a license fee of $ 22.50 per year.Relators applied for such city license, but it was denied solely for these reasons; (1) That by the issuance thereof the number of licenses permitted by Sec. 1OrdiannceNo. 363 would have been exceeded; (2) The failure of the applicants to obtain and present the consent of the property owners, as prescribed by Sec. 3 of that ordinance.Whereupon relators instituted this original proceeding in...