State ex rel. v. Smith
| Decision Date | 04 April 1910 |
| Citation | 127 S.W. 129,142 Mo.App. 373 |
| Parties | STATE OF MISSOURI ex rel. v. W. A. SMITH, Relator, v. JOHN W. BERRYMAN et al., Respondents |
| Court | Missouri Court of Appeals |
Peremptory writ awarded.
Ernest A. Green for relator.
(1) The only authority and power which cities of the third class have with reference to the granting of dramshop licenses is "to levy and collect a license tax on liquor sellers." When the license tax was paid by relator, he was entitled to the grant of a license. Session Acts of Missouri 1907, p. 98; secs. 5857, 5835, R. S. 1899; Joplin v. Jacobs, 119 Mo.App. 134. (2) Relator is not required to be a citizen of the city of Poplar Bluff in order to be entitled to the grant of a dramshop license. It is not a qualification fixed by statute. Sec. 2993, R. S 1899; State ex rel. v. McCammon, 111 Mo.App. 134. (3) Cities of the third class have no discretion in reference to granting licenses to conduct dramshops, and no power to do anything in reference thereto, other than to levy and collect a license tax on liquor sellers. Therefore, sections 188 et seq., of the revised ordinances of the city of Poplar Bluff are all invalid and void as being passed in excess of the powers granted to said city as a city of the third class. Laws 1907, p. 98; sec. 5857, R. S. 1899; Joplin v Jacobs, 119 Mo.App. 134; State v. Butler, 178 Mo. 272; Dillon Mun. Corp. (4 Ed.), 392.
David W. Hill for respondents.
(1) Poplar Bluff, a city of the third class, had the right to ordain the ordinances set out in respondents' return. Sec. 5857, R. S. 1899, as amended by Act of 1907; sec. 5872 R. S. 1899; Warrensburg v. McHugh, 122 Mo. 649; State ex rel. v. Stiff, 104 Mo.App. 685; State v. Meagher, 114 Mo.App. 266; Joplin v. Jacobs, 119 Mo.App. 134. (2) Relator is not entitled to a peremptory writ of mandamus unless he can show that he is irreparably injured, and as no one has the right to sell liquor as a matter of course, he is not injured by the refusal of a license. State ex rel. v. Fort, 107 Mo.App. 340. (3) The temporary structure on the west half of lot 61 was built of combustible material, in violation of sections 314 and 315 of the revised ordinances of the city and ordinance No. 24; and ordinance No. 240, declaring the fact that the building was so constructed in violation of said ordinances, and ordering its abatement and removal, is valid. Section 5835, R. S. 1899; Eichenlaub v. St. Joseph, 113 Mo. 395; Brown v. Carrollton, 122 Mo.App. 276; State ex rel. v. Murphy, 134 Mo. 548.
Original Proceedings in Mandamus.
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 two thousand. 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 of the city relating to prevention of fires.
On the hearing it was agreed that the relator was a law-abiding, assessed taxpaying male citizen of Butler county, but not of Poplar Bluff, and that his petition presented to the city council, contained the names of two-thirds majority of the assessed taxpaying citizens, including guardians of minors owning property in the square where the dramshop license was desired.
After the return had been filed and the said admissions made, the relator filed his motion for peremptory mandamus and his right to have the same issued, is the matter now to be considered.
The fact that relator was not a citizen of the city of Poplar Bluff would not justify the council in refusing him a license, as we do not believe that the city, in any event, has the power to prescribe any additional qualifications for a dramshop license than are contained in the general law.
The first question to be determined is: Has a city of the third class the right to require a petition signed by a majority of the assessed taxpaying citizens as a prerequisite to the granting of a dramshop license? And if it has the right to require a petition, is that part of the ordinance valid which provides that before a license shall be granted on petition signed by a majority of the qualified petitioners, that a finding of the proper qualifications of the applicant shall be made by two-thirds majority of all the members of the council elected?
The section of the statute relating to granting of license to keep dramshops is 5857, Revised Statutes 1899, and as amended by the Act of 1907, reads as follows:
"The council shall have power and authority to levy and collect a license tax on beer depots or storerooms, auctioneers, druggists, hawkers, peddlers, banks, pawnbrokers, merchants of all kinds, . . . taverns, hotels, public boarding houses, liquor sellers, etc.; and to license, tax, regulate or suppress ordinances, 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."
By reference to the above section, it will be seen that there are five classes of persons, avocations and things mentioned and considered. On the first group, the council is given only the power to "levy a license tax;" the second, to "license, tax, regulate or suppress;" the third, to "license, tax and regulate;" the fourth, to "regulate, license and restrain;" and the fifth, to "license and regulate."
In St. Louis v. Insurance and Trust Co., 47 Mo. 150, in speaking of a similar statute, the court said: "These provisions, contained in the same section, abundantly show that the mind of the lawgiver was directed to the subject, and that the power to tax was given where it was intended to be exercised, and that it was withheld where it was not so expressed."
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