State ex rel. Smith v. Berryman

• Decision Date: 04 April 1910
• Parties: STATE ex rel. SMITH v. BERRYMAN et al.
• Court: Missouri Court of Appeals

127 S.W. 129

142 Mo. App. 373

STATE ex rel. SMITH v. BERRYMAN et al.

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. INTOXICATING LIQUORS (§ 11) — APPLICANT FOR LICENSE — QUALIFICATIONS.

That an applicant for a dramshop license is not a citizen of the municipality would not justify a city council in refusing it, as the city could not prescribe a qualification not contained in the general law.

2. LICENSES (§ 1) — NATURE OF "LICENSE TAX."

A "license tax" is one imposed on the privilege of exercising certain callings, professions, and avocations, and, when collected, is a part of the general funds of a city.

For other definitions, see Words and Phrases, vol. 5, pp. 4142, 4143.]

3. MUNICIPAL CORPORATIONS (§ 57) — POWERS IN GENERAL.

A municipal corporation has only the powers granted in express words; those necessarily or fairly implied in or incident to the powers expressly granted, and those essential to its declared objects and purposes.

4. MUNICIPAL CORPORATIONS (§ 58) — DOUBTFUL POWERS — JUDICIAL DETERMINATION.

Any fair, reasonable doubt as to the existence of a power is resolved against the corporation.

5. MUNICIPAL CORPORATIONS (§ 58) — POWER TO ENACT ORDINANCES.

Rev. St. 1899, § 5834 (Ann. St. 1906, p. 2949), giving cities of the third class power to enact ordinances for the general welfare, does not overrule or enlarge powers expressly granted.

6. INTOXICATING LIQUORS (§ 10) — DRAMSHOPS — POWER TO REGULATE.

Rev. St. 1899, § 5857, as amended by Act 1907, p. 98 (Ann. St. 1906, p. 2961), provides that "the council may levy and collect a license tax on beer depots and store-rooms, * * * taverns, hotels, public boarding-houses, liquor sellers, etc.; and to license, tax, regulate or suppress ordinaries, money brokers, money changers, intelligence and employment houses, fortune tellers, * * * billiard tables, pool or other tables, boxing and sparring exhibitions, shows and amusements, tippling-houses; and to regulate, license and restrain runners for steamboats, cars, stages and public houses; and to license ferries, and to regulate the same and the landing thereof within the limits of the city." Held, that it was doubtful if a city of the third class had the power to regulate dramshops in the same manner and to the same extent that it could if it was not limited by the special provisions of this section.

7. MUNICIPAL CORPORATIONS (§ 592) — REGULATIONS BY ORDINANCE — CONFORMITY TO STATE LAW.

Rev. St. 1899, § 6258 (Ann. St. 1906, p. 3129), provides that any municipal corporation authorized to pass ordinances regulating matters as to which there is a general law, unless otherwise prescribed or authorized by some special charter provision, shall confine and restrict its jurisdiction to the passage of its ordinances to and in conformity with the state law on the same subject. Held, that this clearly declared the rule that, even where cities have the power to regulate, the ordinance must in all things comply with the state law on the same subject.

8. INTOXICATING LIQUORS (§ 11) — ORDINANCE FOR DRAMSHOP LICENSE — COMPLIANCE WITH STATE LAW.

By an ordinance, a majority of a city council was prohibited from granting a dramshop license unless two-thirds should be of opinion that the applicant was a law-abiding, assessed, taxpaying male citizen, and even though the petition was signed by two-thirds of the assessed, taxpaying citizens, and an applicant was legally qualified, a license should not issue unless a majority should be of opinion that the applicant was law-abiding. Held, that this did not, as required by Rev. St. 1899, § 6258 (Ann. St. 1906, p. 3129), comply with the state law on the same subject, under which a majority may pass an ordinance and perform all general acts, and a majority of the county court may grant such a license on a majority petition, section 4160 providing that words importing joint authority to three or more persons shall be construed as authority to a majority unless otherwise declared.

9. INTOXICATING LIQUORS (§ 74) — COMPELLING ISSUANCE OF DRAMSHOP LICENSE.

Failure to offer evidence before a city council, showing that a petition for a dramshop license was signed by the majority, required by a valid ordinance, precludes the issuance of a peremptory writ to compel issuance of the license.

10. INTOXICATING LIQUORS (§ 69) — DRAMSHOP LICENSE — ISSUANCE — DISCRETION OF CITY COUNCIL.

In cities where power to grant dramshop licenses is in the council's discretion, and where it is given express power to regulate, the number of saloons and their localities is a matter within such discretion, but, when it is mandatory to issue a license on the petition of taxpaying citizens of the municipality, the council cannot refuse on account of the number of saloons or their localities.

11. INTOXICATING LIQUORS (§ 99) — DRAMSHOP LICENSES — OPERATION AND EFFECT.

A license to keep a dramshop at a particular place would not entitle the licensee to prohibit a city council from removing a building at such place erected in violation of an ordinance as to fire limits.

12. INTOXICATING LIQUORS (§ 74) — COMPELLING ISSUANCE OF SALOON LICENSE.

Where the law makes it mandatory to grant a saloon license, mandamus is the proper remedy to compel its issuance.

13. INTOXICATING LIQUORS (§ 64) — ISSUANCE OF DRAMSHOP LICENSE.

Regardless of whether cities of the third class have power to require petitions of the character required under the dramshop act, to be presented for a license, inasmuch as a person applied for his license by presenting such a petition, and paid to the city court the amount required under the provisions of an ordinance for the issuance of licenses, the council should have granted him the license.

Mandamus by the State, on the relation of W. A. Smith, against John W. Berryman and others. Peremptory writ awarded.

Ernest A. Green, for relator. David W. Hill, for respondents.

GRAY, J.

The relator is an applicant for license to keep a dramshop in the city of Poplar Bluff. Respondents are the mayor and councilmen of that city. An alternative writ was issued on a petition of the relator therefor, and respondents have made their return thereto.

The facts are practically agreed on. Poplar Bluff is a city of the third class, and had at all times hereinafter mentioned a population of more than 2,000. On the 25th day of January, 1910, relator filed in the office of the city clerk an application and petition for a license to conduct a dramshop on lot 61 in said city. The petition as to the qualifications and number of signers, is in the following language: "The undersigned, your petitioners, comprising a majority both of the assessed, taxpaying citizens and guardians of minors owning property therein, and in the block or square in which said dramshop is to be kept in the city of Poplar Bluff," etc. On the 8th day of February, 1910, the county court of Butler county granted to the relator a license to keep a dramshop on said lot 61. On the 16th day of February, the relator paid to the city the amount required by the ordinance hereinafter mentioned for a dramshop license. The petition was first presented to the council on the evening of February 7, 1910, and at that time the council refused to grant a license. On the 21st day of February, 1910, the city clerk, at the request of the relator, called up the matter again before the council, but the council refused to take any action thereon. At the time complained of, it is claimed by the respondents that there was in force in Poplar Bluff an ordinance relating to granting licenses to keep dramshops. It will not be necessary to set out all of said ordinance herein, as it is in conformity to the state law, except as hereinafter stated. The ordinance, instead of following the state law governing such matters, provides that if two-thirds of all the members of the city council duly elected thereto, shall be of the opinion that the applicant is a law-abiding, assessed, taxpaying citizen, and that his petition is signed by a majority of the assessed, taxpaying citizens and guardians of minors owning property in the square in which the dramshop is to be kept, the council may grant a license for six months. And then provides that if a majority of all the members elected to the city council shall be of the opinion that the applicant is a law-abiding person, as aforesaid, and the petition contains the proper names subscribed thereto of two-thirds of the said assessed taxpaying citizens, as aforesaid, then the council shall grant the license. The ordinance also contains a provision that the money collected for the license shall be paid into the general revenue funds of the city. The respondents in their return set out said ordinance and denied that the relator, at the time mentioned, was a citizen of the city of Poplar Bluff; admitted that he filed a petition, and alleged "that said petition did not purport to be signed by two-thirds majority of the assessed taxpaying citizens and guardians of minors owning property in the square where the dramshop was desired, and that respondents do not know whether said petition does, in fact, contain such majority, and deny that the relator at any time, before the council, introduced or offered any competent proof or testimony establishing the facts in regard to his qualifications and the sufficiency of his petition;" alleged that at the place where it was proposed to conduct the dramshop there was no permanent building, and that the city had duly enacted an ordinance defining fire limits within the corporation, and that a temporary structure known as an "Air Dome," without any roof, was erected on said lot, and subsequently, without any legal authority, a skating rink was erected, and the person so erecting it agreed to remove the same, and that the city council had passed an ordinance ordering the removal of said building, as being a nuisance, and erected and maintained in violation of the ordinances...