State of Missouri v. Keirnan, 20719.

Citation207 S.W.2d 49
Decision Date01 December 1947
Docket NumberNo. 20719.,20719.
PartiesSTATE OF MISSOURI, AT THE RELATION OF JOHN COLLINS, DOING BUSINESS AS WONDER BAR TAVERN, (APPELLEE), RELATOR v. JOSEPH F. KEIRNAN, DIRECTOR OF THE DEPARTMENT OF LIQUOR CONTROL OF KANSAS CITY, MISSOURI, (RESPONDENT), APPELLANT.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court of Jackson County. Hon. Thomas J. Seehorn, J.

AFFIRMED.

David M. Proctor and Henry Arthur for appellant.

(1) The Wonder Bar was and still is within 100 feet of a church in violation of Section 4948 of the Revised Statutes of Missouri, 1939, and Paragraph 3, Section 14, of Ordinance No. 6958, and Paragraph 4, Section 16, of Committee Substitute for Ordinance No. 8712. Section 4948, Revised Statutes of Missouri, 1939. Paragraph 3, Section 14, Ordinance No. 6958. Paragraph 4, Section 16, Ordinance No. 8712. State v. Wipke, 345 Mo. 283, 133 S.W. 2d 354. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W. 2d 808. State v. Distilling Company, 236 Mo. 219, 139 S.W. 453. St. Louis v. Tielkemeyer, 226 Mo. 130, 125 S.W. 1123. State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W. 2d 1030. Fishbach Brewing Co. v. St. Louis, 231 Mo. App. 793, 95 S.W. 2d 335. (2) The erection of the partition did not remove the premises from the interdict of the ordinance nor make the "saving clause" of the ordinance applicable. Dougherty et al. v. Kentucky Alcoholic Beverage Control Board et al., 279 Ky. 262, 130 S.W. 2d 756. George v. Travis, 152 N.W. 207. U.S. ex rel. Sheehy v. Johnson, 12 App. D.C. 92. Com. v. Jones, 142 Mass. 573. State v. Greenway, 92 Iowa 472, 61 N.W. 239. (3) There was no waiver by the Calvary Baptist Church of the legal restrictions imposed by statute and ordinance. Milam County Mutual Life and Accident Association v. Watson, 29 S.W. 2d 813. Berman v. Fraternities Health Association, 107 Me. 368, 78 Atl. 462. Plumer v. Continental Casualty Company, 77 S.E. 917. 67 C.J. 298, 310.

Myer M. Rich and O. Hampton Stevens for appellee.

(1) Appellee's premises are properly located according to the applicable state statute and city ordinances. Ordinance No. 3437 of Kansas City, Missouri. Ordinance No. 6958 of Kansas City, Missouri, Sec. 14, Par. 3, 4, and 5. Mo. Digest, Vol. 2, Appeal and Error, Section 171(1). Rev. Statutes of Mo. 1939, Section 4948. State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W. 2d 1030. (2) The letter of consent constituted a valid waiver under the statute and was accepted as such by the State Supervisor. State ex rel. Renner v. Noel, 346 Mo. 286, 140 S.W. 2d 57. Fishbach Brewing Co. v. City of St. Louis, 95 S.W. 2d 335.

BLAND, J.

This is a proceeding in mandamus, wherein John J. Collins, seeks to obtain a peremptory writ against Joseph F. Keirnan, Director of Liquor Control of Kansas City, a municipal corporation, commanding him to issue a city permit to relator to sell intoxicating liquors at retail by the drink and otherwise, for the calendar year 1945, in the premises located at 3922 Main Street, in Kansas City.

The court below issued a peremptory writ of mandamus, as prayed, and respondent has appealed.

The controversy involved in this case relates to the question as to whether the tavern in question is located within the proscribed distance of a church. The evidence shows that the tavern known as the Wonder Bar has been in continuous operation at the premises known as 3922 Main Street, in Kansas City, since December 1934; that the operators thereof obtained licenses from the state and city authorities, continuously, until the proceedings hereinafter mentioned.

The evidence further shows that the relator purchased the business from Mrs. Sansone, his immediate predecessor, in September 1942 for $15,000, and continued the operation thereof; that the Calvary Baptist Church is located in the 3900 block on Baltimore Avenue, the rear of which is opposite to the rear of the Wonder Bar premises; that the intervening space between the two buildings measures 93.7 feet.

Section 4948, which has been in force and effect since 1935 (see laws 1935, section 267) provides that no license for the sale of intoxicating liquor shall be granted within 100 feet of any church without the applicant first having obtained the consent, in writing, of the majority of the managing board of such church; that the board of aldermen, city council or other proper authorities may, by ordinance, prohibit the granting of a license for the sale of intoxicating liquor within a distance as great as 300 feet; that "in such cases and where such ordinance has been lawfully enacted, no license of any character shall issue in conflict with such ordinance while such ordinance is in effect."

Ordinance 3437 of Kansas City, passed on January 29, 1934, provides: "No license shall be issued to any applicant to sell liquor by the drink in any place or premises outside of the boundaries of the district defined and described in Section 12 hereof, when such place or premises is located on either side of the same street, within the same block with any church located thereon."

Ordinance 3437 was appealed, with a saving clause, by Ordinance 6958 passed on December 22, 1941. Paragraph 3 of Section 14 of Ordinance 6958 provides: "No unlimited sales by drink permit and license and no malt liquor sales by drink permit and license shall be issued for the sale of intoxicating liquor at any location when such location is within 300 feet of any school, church, or other building regularly used as a place of religious worship."

Paragraph 4 of Section 14 of Ordinance 6958 provides: "No retail permit and license, as herein provided for, shall be issued unless the location for which such permit and license are sought conforms with the provisions of the laws of the State of Missouri, relating to the location of retail liquor establishments."

Paragraph 5 of Section 14 of Ordinance 6958, provides: "Nothing contained in the foregoing restrictions as to the location of retail liquor establishments shall affect the continuation of retail liquor establishments which were properly located in conformity with the provisions of the ordinances of Kansas City, Missouri, which were in effect prior to the enactment of this ordinance."

The facts show that the Wonder Bar was not at any time located on either side of the same street, within the same block with any church located thereon. Owing to the fact that the premises in question were located within 100 feet of the Calvary Baptist Church no license could have been granted by the State for the operation of the bar in question without the operator thereof having first obtained consent in writing of the managing board of such church. (See Section 4948.) However, the state licenses were granted to relator and his predecessors apparently on the theory that the consent of the managing board of the church had been obtained. The application of Mrs. Sansone for a state license for the year 1939 recites that the tavern was "86 feet from church — consent attached." The "consent attached" which has always remained in the files of the State Supervisor of Liquor Control, and which relator relied upon when he purchased the tavern from Mrs. Sansone, was signed by W. Morris Ford, Pastor, and reads as follows:

"We, the members of the Calvary Baptist Church, while not at all in favor of any place which dispenses strong drink, make no objections to the Wonder Bar, the rear of which is 86 feet from the rear of the Church building. The nearness of the building is not the objectionable point. Having been at the same location for more than four years and having caused us no trouble, the Wonder Bar will not be molested."

There were numerous other liquor dispensing places in the same vicinity.

Before writing this letter Dr. Ford did not obtain the consent of the managing board of the church for the writing thereof. It is contended by the respondent that, for this reason, there was no legal consent by the church to the location of the tavern in question. Subsequent to the writing of the letter the church changed pastors and the new pastor caused the board of deacons of the church, which is its managing board, to file with the State Supervisor of Liquor Control, an application or petition for the revocation of the state license of the relator on account of the nearness of relator's place of business to the church. The State Supervisor evidently either concluded that this application or petition amounted to a withdrawal of the consent of the church to the location of the Wonder Bar within 100 feet of the church or that the letter of Dr. Ford was unauthorized in the first place. Notice was given and a hearing was held in the office of the State Supervisor in Jefferson City sometime in December 1944. At this hearing the State Supervisor suggested to the relator that if a partition should be erected inside the building separating the front portion thereof from the rear so as to render the front room of the premises more than 100 feet from the church, relator's license would be renewed. The State Supervisor held the matter in abeyance until it was reported to him by the deputy state supervisor at Kansas City that relator had in fact erected a partition inside of his building separating the rear part thereof from the front portion, which partition was more than 100 feet from the church. Thereafter, relator filed a new application with the State Supervisor for a license to sell liquor by the drink. This application was approved and relator obtained a renewal of his license on the same day and the supervisor cancelled the old one.

After relator obtained a renewal of his license from the State Supervisor he filed a formal application with the respondent, Director of Liquor Control of Kansas City, for a city permit. Upon protest being lodged by the Board of Deacons of the church, respondent held a hearing, received evidence and, on February 6, 1945, entered an order in which h...

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