State ex rel. Kemerling v. Peterson

• Decision Date: 08 November 1948
• Citation: 214 S.W.2d 739,240 Mo.App. 700
• Parties: State ex rel., Albert Kemberling, et al., Relators, v. S. J. Peterson, et al., Respondents
• Court: Kansas Court of Appeals

214 S.W.2d 739

240 Mo.App. 700

State ex rel., Albert Kemberling, et al., Relators, v. S. J. Peterson, et al., Respondents

Court of Appeals of Missouri, Kansas City

November 8, 1948

Delivered

Appeal from Circuit Court of Atchison County; Hon. Ray Weightman Judge.

Affirmed.

Ellis G. Cook for appellants.

(1) The Court erred in refusing to strike certain portions of the agreed statement of facts. State v. Keirman 207 SW (2), 49; Section 4904 R. S. Mo. 1939. (2) The City of Fairfax had no right to refuse when requested to issue the permit. State v. Keirman 207 SW (2), 49; Section 4909 R. S Mo. 1939.

Walter Mulvania and John M. Gerlash for respondents.

(1) The alternative writ is the primary pleading in mandamus and must state a cause of action for relief. State ex rel. Thomas Cusack Co. v. Shinnick, 232 S.W. 1053, 208 Mo.App. 284. (2) Before relators are entitled to mandamus they must have made a specific demand of respondents, for a license to sell intoxicating liquor in the original package, and the same must have been refused. State ex rel. Erwin v Holman, 256 S.W. 776, 301 Mo. 333; State ex rel. Onion v. Supreme Temple Pythian Sisters et al., 54 S.W. 2d 468, 227 Mo.App. 557. (3) Relator has the burden of showing respondents' imperative duty to perform the act required and the relators' clear legal right to enforce the performance of this duty. State ex rel. Cook v. Kelly, 142 S.W. 2d 1091, 235 Mo.App. 832. (4) Relators applied prematurely for writ of mandamus. State ex rel. Wagner et al. v. Fields, 263 S.W. 853, 218 Mo.App. 155. (5) The City of Fairfax is given authority by statute to regulate and control the sale of intoxicating liquor within its limits. Sec. 4904, R. S. Mo., 1939. (6) This power to regulate the sale of intoxicating liquor implies authority to prescribe regulations under which the license should issue, so long as not in conflict with the state law. State ex rel. Wagner et al. v. Fields, 263 S.W. 853, 218 Mo.App. 155; State ex rel. Hewett v. Womach, 196 S.W. 2d 809, 355 Mo. 486; City of Flat River v. Mackley, 212 S.W. 2d 462; Vest v. Kansas City et al., 194 S.W. 2d 39. (7) In order that there be a conflict between state law and municipal regulation both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. 43 C. J., Municipal Corporations, Sec. 220, pp. 218-19; St. Louis v. Klausmeier, 213 Mo. 127, 112 S.W. 518, Freeman v. Green, 186 S.W. 1166; City of Flat River v. Mackley, 212 S.W. 2d 466. (8) The city of Fairfax was not compelled, regardless of the facts, to issue the license and then afterwards attempt to regulate and compel obedience by prosecution or other means. State ex rel. Wagner et al. v. Fields, 263 S.W. 853, 218 Mo.App. 155. (9) The requirement by ordinance of a written application for the issuance of a liquor license is reasonable and not in conflict with the state law. 37 C. J. 238; 33 C. J. 543; 43 C. J. 259. (10) The court cannot substitute its discretion for that of the licensing authority. Mangieracina v. Haney, 141 S.W. 2d 89; State ex rel. Bismark Grill, Inc., v. Keirnan, 181 S.W. 2d 798, 238 Mo.App. 507. (11) If relators are entitled to a license as a matter of law whenever a proper showing is made, yet the license is not demandable until that hearing is had and showing made. State ex rel. Hendricks et al. v. Hopson, 163 S.W. 279, 177 Mo.App. 12. (12) Charges filed against relators for illegal sale of intoxicating liquors pending and undisposed of at the time of issuance of the alternative writ. Until these are disposed of a peremptory writ should be denied on the ground that it cannot be determined whether they are proper parties to have a license. State ex rel. Sharp v. Weeks, 93 Mo. 499, State ex rel. Crabbe v. Miller, 108 S.W. 603, 129 Mo.App. 390. (13) The tendering of payment to the City Clerk and an oral request of a license from him were not a substantial compliance with the laws of the State, and the Ordinances of the City of Fairfax, entitling relators to a city license to sell intoxicating liquor. R. S. Mo., 1939, Secs. 7118, 7162 and 7196.

OPINION

Cave, P. J.

This is a proceeding in mandamus wherein relators seek to obtain a peremptory writ against the respondents commanding them to issue a city license to relators to sell intoxicating liquor by the package. The cause was submitted to the trial court on an agreed statement of facts, resulting in a judgment quashing the alternative writ and dismissing the petition. Relators have appealed.

The essential facts are: William A. Kemerling and Edward J. Prime, relators, were partners doing business in the town of Fairfax, Atchison County, Missouri, under the firm name of Kemerling and Prime; that Fairfax is a city of the fourth class; that the respondents are the mayor and board of aldermen of Fairfax; that relators desire to sell intoxicating liquor in the original package at a place of business in Fairfax and secured a state license from the Supervisor of Liquor Control for that purpose. Thereupon they deposited a check with the Clerk of the County Court of Atchison County to pay the proper county license fee, and delivered a check to the City Clerk of Fairfax to pay the proper city license fee; that neither check was ever cashed and no county nor city license was ever issued; the City Clerk never presented the check to the board of aldermen at any regular or special meeting and no action was ever taken by that board. It is agreed that at no time did the relators make an application, either written or oral, to the board of aldermen for a license to sell liquor in the original package; nor did they comply with any of the requirements provided for by the city ordinance, hereinafter referred to, except to tender a check to the City Clerk, or ever made any demand of respondents for the issuance of a license. Notwithstanding the fact that relators did not have a county or a city license, they began the sale of liquor in the original package; whereupon they were arrested by the city authorities, and the prosecuting attorney of Atchison County filed an injunction suit to enjoin them from the further sale of such liquor, and, as a result of these proceedings, relators filed their petition in mandamus.

The city of Fairfax had enacted Ordinance No. 353 relating to the licensing and regulation of the sale of intoxicating liquor in that city, and required, among other things, that before a license could be issued, a written application, under oath must be made to the board of aldermen; that the application should be accompanied by an appraisal of merchandise on said premises other than fixtures and intoxicating liquor, the value of such merchandise to be at least $ 1500. The ordinance also provided that no license should be issued to any applicant who is not of good moral character or who has been convicted of a felony in the State of Missouri; that the applicant be a citizen of the United States and a qualified voter of the city of Fairfax; and could only be issued to persons engaged in and to be used in connection with the following businesses: a drugstore;...