State ex rel. Swarthout v. County Court of Cass County

• Decision Date: 27 May 1912
• Parties: STATE ex rel. NED SWARTHOUT, Relator, v. COUNTY COURT OF CASS COUNTY, Respondents
• Court: Kansas Court of Appeals

148 S.W. 118

166 Mo.App. 159

STATE ex rel. NED SWARTHOUT, Relator, v. COUNTY COURT OF CASS COUNTY, Respondents

Court of Appeals of Missouri, Kansas City

May 27, 1912

Mandamus.

PEREMPTORY WRIT DENIED.

Peremptory writ denied.

F. V Kander and John A. Davis for relator.

J. S Brierly and Charles W. Sloan for respondents.

OPINION

PER CURIAM.

Relator by proper petition seeks to have this court, by its writ of mandamus, compel the county court of Cass county to grant him a license to keep a dramshop in that county.

It appears that at an election held in that county in 1907, the Local Option Law as to the sale of intoxicating liquors, was adopted. Shortly after its adoption, the same party now seeking to compel the county court to issue him a license, conceived the law not to be legally adopted and therefore applied to the county court for a license as a dramshop keeper. That court refused the license on the ground that the election was valid and therefore a license was forbidden. He then came to this court, alleging the election to be void and asking that we issue a writ against the county court commanding it to grant him the license. This court heard the cause, adjudged the local option election to be void, and rendered a judgment in his favor, and issued a writ commanding the court to grant him a license, which was done. The opinion in the case will be found reported under the title State ex rel. Wirt v. Cass County Court, 137 Mo.App. 698, 119 S.W. 1010; Wirt's case and this relator's having been consolidated and heard as one. And a like opinion of the St. Louis Court of Appeals will be found in State ex rel. v. Mitchell, 115 S.W. 1098, approved in State ex rel. v. Mitchell, 139 Mo.App. 38, 119 S.W. 498.

The facts of the case and the reasons for our conclusions are there set out in full and need not be restated. Afterwards, a case arose in Newton county involving the same facts and conditions which appeared in the case upon which we acted. On appeal to the Springfield Court of Appeals, a view was taken directly opposed to that of the St. Louis Court of Appeals and of this court (State v. Jaeger, 157 Mo.App. 328, 138 S.W. 345), in which the election in Newton county was held valid, in opinions by Special Judge MANN and Presiding Judge NIXON. The case was certified to the Supreme Court for final decision, and that court adopted the views and the opinion of Judge MANN, thus overruling the views expressed by the St. Louis Court of Appeals and this court. [State v. Jaeger, 240 Mo. 1, 144 S.W. 103.]

After the decision in this court, the relator obtained licenses from time to time, as they expired, until now, in the present application, the county court has concluded, in view of the decision of the Supreme Court, that the local option election was valid, notwithstanding the decision of this court in the case above mentioned, and that therefore a license should be refused. In this we think the county court was clearly right. If, in the opinion of either of the courts of appeals, such court has rendered an opinion contrary to that of one of the other courts of appeals, it becomes its duty to certify the case to the Supreme Court, and that court's decision thereon is final and controlling. [Bank v. Woesten, 144 Mo. 407, 46 S.W. 201; Schafer v. Ry. Co., 144 Mo. 170, 45 S.W. 1075; Wilden v. McAllister, 178 Mo. 732, 77 S.W. 730; Rodgers v. Ins. Co., 186 Mo. 248, 85 S.W. 369; Houck v. Waterworks & E. L. Co., 215 Mo. 475, 478, 114 S.W. 1098.]

But relator insists that the matter of the invalidity of the local option election in Cass county, was finally decided by this court, and that it became res adjudicata, if again questioned. We do not agree to this. Certainly that case determined that he should get the license...