State ex rel. Kemper v. Carter

• Decision Date: 02 April 1914
• Parties: THE STATE ex rel. WILLIAM KEMPER v. ALEX CARTER et al., Judges, and JOHN B. GRAHAM, Clerk, of the County Court of Audrain County
• Court: Missouri Supreme Court

165 S.W. 773

257 Mo. 52

THE STATE ex rel. WILLIAM KEMPER v. ALEX CARTER et al., Judges, and JOHN B. GRAHAM, Clerk, of the County Court of Audrain County

Supreme Court of Missouri

April 2, 1914

Writ denied.

George Robertson and McBaine & Clark for relator.

(1) Mandamus is a proper remedy to compel the issuance of a license to keep a dramshop, if the dramshop law was in force in Mexico, Missouri, when the license was refused, and the Local Option election was illegal and void. State ex rel v. Turner, 210 Mo. 77; State ex rel. v. Ross, 160 Mo.App. 682; State ex rel. v. Ross, 161 Mo.App 671. (2) The election in Mexico, on October 27, 1913, was illegal and void and of no effect and the dramshop law was not suspended, because the city council of the city of Mexico failed to order the same according to the provisions of Sec 7239, R. S. 1909, which relates to Local Option elections in cities of over twenty-five hundred inhabitants, and which provides that such elections shall only be ordered when the petition therefor is "signed by one-tenth of the qualified voters of any incorporated city or town in the State having a population of twenty-five hundred inhabitants or more." The city council did not make such finding but on the contrary, found that the petition was "signed by one-tenth of the qualified voters of said city of Mexico, Missouri, who were qualified to vote for members of the Legislature in said city and county of Audrain at the last previous general election therein." Upon this finding by the city council a valid and legal election could not therein be held. State ex rel. v. Weeks, 38 Mo.App. 566; State ex rel. v. Bird, 108 Mo.App. 163; State ex rel. v. Ross, 160 Mo.App. 704. (3) The city council has not determined the result of the special election of October 27, 1913, nor has it published the result of the election as required by Sec. 7242, R. S. 1909. Until the publication of the result of the election is commenced the dramshop law is not suspended, so far as the granting of licenses is concerned, but up to the time of the commencement of a legal publication one holding a dramshop license expiring after the election and before the commencement of the publication is entitled to renewal of his license for a period of six months if he has previously filed a two-thirds petition. Secs. 7239, 7242, R. S. 1909; State ex rel. v. Ross, 160 Mo.App. 702. (4) The election at Mexico, of October 27, 1913, was invalid and illegal because at that time the Local Option Law relating to elections in cities of twenty-five hundred inhabitants or more, had been repealed by the Act of March 10, 1913, known as the County Unit Local Option Law, which was in full force and effect and had not been suspended by referendum petitions. (a) The filing of referendum petitions by the people does not of itself work a suspension of the law, but on the contrary, only if sufficient, refers the law to the people for approval or rejection at the next election. Secs. 36, 57, art. 4, Constitution; Telephone Co. v. Oregon, 223 U.S. 118; Sears v. Multnomah County, 49 Ore. 45; 36 Cyc. 1071; Road District v. Huber, 212 Mo. 551; State ex rel. v. Wells, 210 Mo. 701; State ex rel. v. Bishop, 41 Mo. 17. (b) Certainly, under no view of section 57 of article 4 of the Constitution of Missouri, is the law upon which referendum petitions are filed suspended until the Secretary of State has counted the names upon the petition and determined their sufficiency. This was not done until December 11, 1913, after the Mexico election of October 27, 1913. State ex rel. v. Roach, 230 Mo. 408.

E. S. Gantt, E. A. Shannon and Fauntleroy, Cullen & Hay for respondents.

(1) The issuance of a writ of mandamus is a matter of discretion and not a matter of right and the writ should not issue until it appears that justice requires it. State ex rel. v Cottengin, 172 Mo. 129; Bank v. Clerk, 141 Mich. 404; Bibb v. Gaston, 146 Ala. 434; People v. Rock Island, 215 Ill. 488; Kenneally v. Chicago, 220 Ill. 485; Cicero v. People, 105 Ill.App. 406; People v. Chicago, 106 Ill.App. 72; McCarthy v. Boston, 188 Mass. 338; People v. State Auditors, 42 Mich. 422; Lamphere v. Grand Lodge, 47 Mich. 429; Fletcher & Sons v. Circuit Judge, 136 Mich. 511; State v. Barret, 30 Mont. 203; Moores v. State, 71 Neb. 522. The writ of mandamus should not be issued unless the petitioner shows a clear right thereto. State ex rel. v. Fletcher, 39 Mo. 388; State ex rel. v. Lesueur, 136 Mo. 452; Seibert v. Swayne, 97 Ill.App. 85; People v. Heit, 116 Ill.App. 391; State v. Bever, 143 Ind. 488; State ex rel. v. Lumber Co., 115 La. 893; People v. Judge, 19 Mich. 296; People v. Woodbury, 85 N.Y.S. 174, 88 A.D. 443; Huddleston v. Board of Comrs., 8 Okla. 614; Commonwealth v. James, 214 Pa. 319; Hutton v. Holt, 52 W.Va. 672. Mandamus will not lie against a public officer to control a discretionary power. State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Higgins, 84 Mo.App. 531; State ex rel. v. Horner, 10 Mo.App. 307; State ex rel. v. County Court, 31 Mo. 545; State ex rel. v. Francis, 96 Mo. 44; State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Jones, 155 Mo. 570. To entitle one to a writ of mandamus against a public officer it must appear that a proper demand has been made upon him, and that he has refused to perform the act. State ex rel. v. Lesueur, 136 Mo. 452; State ex rel. v. Associated Press, 159 Mo. 410. Mandamus only lies to compel the performance of a duty clearly enjoined by law. State ex rel. v. Hudson, 13 Mo.App. 61; State ex rel. v. Williams, 99 Mo. 291. Mandamus is a remedial process and is not available to compel the performance of an act that will work public or private mischief, or to compel compliance with the strict letter of the law in disregard of its spirit. People v. Assessors, 137 N.Y. 201; Buckley v. Eisendrath, 58 Ill.App. 364. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial; and though it would be compelled by mandamus to investigate the fact, it cannot be directed to be decided in a particular way; however the way the decision ought to be, may appear. State ex rel. v. Thornhill, 160 S.W. 558; State ex rel. v. Stiff, 104 Mo.App. 685; Church v. Weeks, 38 Mo.App. 556; State ex rel. v. County Court, 39 Mo. 521. In a proceeding by mandamus, where the direct relief sought is the issuance to relator of a dramshop license, the adjudication of the validity or invalidity of a local option election is a collateral question. It is a settled rule that mandamus cannot be made the instrument for giving a court jurisdiction of litigation on collateral matters. State ex rel. v. Wooten, 139 Mo.App. 221. A direct remedy having been provided by law for the contest of local option elections such remedy is exclusive -- concurring opinion in State ex rel. v. Ross, 161 Mo.App. 673. (2) No person has an inherent, or natural right, to sell intoxicating liquors. Austin v. State, 10 Mo. 591; State v. Aiken, 42 S.C. 231; People v. Creiger, 138 Ill. 148; Harrison v. People, 222 Ill. 150; Crowley v. Christensen, 137 U.S. 86. Should a doubt arise as to the right of an applicant for a dramshop license to the issuance thereof, such doubt should be resolved in favor of the public and against the applicant. State ex rel. v. Higgins, 84 Mo.App. 535. The county court has exclusive jurisdiction to grant dramshop licenses and the finding of the court upon any issue of fact on an application for dramshop license is final. State ex rel. v. Thornhill, 160 S.W. 558. (3) The court will take judicial notice of the filing of a referendum petition in the office of the Secretary of State, and also the action of the Secretary on said petition. 16 Cyc. 904-905; Martin v. State, 51 Wis. 407; State v. Gramelspacher, 126 Ind. 398; Roach v. Fletcher, 11 Tex. Civ. App. 225. Judicial knowledge of a statute includes the date when it went into effect, when it was suspended or repealed. 16 Cyc. 892; Jackson v. State, 142 S.W. 1153. (4) The County Unit Bill was suspended by the filing of referendum petitions. State v. Moore, 145 S.W. 199; Kadderly v. Portland, 74 P. 720; Sec. 57, art. 4, Constitution; Bradley v. Bridge Co., 185 F. 544. Any measure referred to the people is suspended in its force and effect upon the filing with the Secretary of State of a legally sufficient referendum petition. This we submit to be the clear intent of the people, as expressed in the language of the referendum provisions of the Constitution. The initiative and referendum provisions of the Constitution are self-enforcing. State v. Langworthy, 104 P. 424; Stevens v. Benson, 50 Ore. 269; State v. Moore, 145 S.W. 199; Norris v. Cross, 105 P. 1004. The Secretary of State, in determining the sufficiency of the petition, has no power to subpoena witnesses, or to take testimony. He must act upon the evidence presented to him, or within his reach without legal process to compel the production of evidence. He is therefore clearly entitled to act upon the evidence presented by the petition itself as to its form, legal regularity upon its face, suggestion or lack of suggestion of fraud or irregularity, the manner of certification to him, the affidavit of the circulators and the number of signers determined either by actual count, name by name, or by the size and bulk of the petition. State ex rel. v. Olcott, 62 Ore. 279; Woodward v. Barbour, 59 Ore. 70. A bill enacted even with an emergency clause is suspended by the filing of referendum petitions. Kedderly v. Portland, 44 Ore. 118. (5) The petition upon which the election was ordered was in fact legally sufficient and so found by the council. The petition alleges that the signers were "qualified voters" of the City of Mexico. The petition is a part of the record. State v....