State ex rel. Shaw v. Baker

• Decision Date: 16 October 1888
• Parties: THE STATE ex rel. H. M. SHAW, Relator, v. H. E. BAKER et al., Respondents.
• Court: Missouri Court of Appeals

32 Mo.App. 98

THE STATE ex rel. H. M. SHAW, Relator, v. H. E. BAKER et al., Respondents.

Court of Appeals of Missouri, St. Louis.

October 16, 1888

Original proceeding by mandamus.

PEREMPTORY WRIT ORDERED.

L. F Parker, for the relator.

By the averments of the writ every element of discretion under the ordinance is eliminated from the case, and the ordinance which is as much the law of the city of Rolla as the statute itself, provides that upon compliance with its provisions the council " shall order a license to be issued," and mandamus will lie to enforce this command. State ex rel. v. Meyers, 80 Mo. 601. The same principle as to the remedy is recognized in Beck v. Jackson, 43 Mo 117; State ex rel. v. Burckhartt, 87 Mo. 533; State ex rel. v. Pond, 93 Mo. 606; Amperse v. City, 26 N.W. 222. The ordinances of the city provide that " no action, prosecution, suit, or proceeding pending at the time any ordinance or part thereof shall be repealed, shall be affected in any way by such repeal," etc. It is averred in the writ and admitted by the demurrer that the application of relator was pending, and a motion had been made and seconded to grant it, before ordinance number thirty was introduced. Whatever the rule in other states, it has always been held in this state that a license is a privilege purchased from the state and confers a right which does not exist without it, and that this " right," when once vested, cannot be affected by subsequent acts. State v. Hawthorn, 9 Mo. 389; Morrow v. State, 12 Mo. 279; State v. Morrow, 26 Mo. 131; State v. Miller, 50 Mo. 129; State v. ex rel. v. Miller, 66 Mo. 328; City v. Guyott, 18 Mo. 515; City v. Noland, 21 Mo. 394; State v. Andrews, 26 Mo. 172; S. C., 28 Mo. 14.

Seay & Webb and A. Corse, for the respondents.

The sale of intoxicating liquor in this state is unlawful. 10 Mo. 591. The granting of the license confers no rights, but only gives a privilege, which privilege may be revoked at any time by the same authority that gave it. The county courts in this state have always had the power to absolutely prohibit the keeping of a dramshop in their county, by refusing to grant license. It has been held that it is a matter of discretion with the county courts, and that mandamus will not lie to control their judgment, whatever that may be. 10 Mo. 581; State v. Holt County Court, 39 Mo. 521. A city council authorized by law to grant a license, is clothed with the same power as a county court, and has the same discretion in matters of that kind. Courts never control by mandamus the discretion of an officer in the exercise of his duty; they may compel him to act, but will not direct how he shall act. A license is not a contract; it confers none of the rights which cannot be revoked at the pleasure of the legislature. Tiedeman on Police Powers, 288, and authorities there cited. The granting of a license by the county court of Phelps county to the relator did not give him any additional rights to demand of the city a license. The repeal of the ordinance did not affect any " proceeding" in which the relator was interested.

OPINION

ROMBAUER P. J.

The respondents move to quash the alternative writ issued herein on the ground that it states no facts which entitle the relator to the remedy he seeks.

The material facts stated in the writ, which this motion concedes to be true, are substantially as follows:

The city of Rolla is a municipal corporation. Prior to July 4, 1888, and on said date, certain ordinances were laws governing said corporation. One of said ordinances provided that the tax for a dram-shop license should be seventy-five dollars. Another of said ordinances provided that, " No action, prosecution, suit, or proceeding, pending at the time any ordinance or part of any ordinance shall be repealed, shall be affected in any way by such repeal, but any such action, prosecution, suit, or proceeding shall proceed in all respects as if such ordinance or part of ordinance had not been repealed."

The relator on the faith of these ordinances applied for a dram-shop license. As the law required that he should have a state and county license as well as one from the city, he applied for the former first, July 4, 1888, and such license was granted to him by the county court upon execution of the statutory bond and the payment of $282.45, July 5, 1888. On the same day he filed his application for a city license accompanied by the proper bond and a tender of the seventy-five...