State v. Clinton County Court

• Citation: 193 Mo. App. 373,185 S.W. 1149
• Decision Date: 03 April 1916
• Docket Number: No. 11918.,11918.
• Parties: STATE ex rel. BAYLESS v. CLINTON COUNTY COURT et al.
• Court: Court of Appeal of Missouri (US)

185 S.W. 1149

193 Mo. App. 373

STATE ex rel. BAYLESS v. CLINTON COUNTY COURT et al.

No. 11918.

Kansas City Court of Appeals. Missouri.

April 3, 1916.

Rehearing Denied May 1, 1916.

Mandamus by the State of Missouri, on the relation of A. D. Bayless, against the County Court of Clinton County, Mo., and others. Peremptory writ ordered to issue.

Darl B. Cross, of Lathrop, and F. V. Kander, of Kansas City, for relator. Henry Perkins and F. B. Ellis, both of Plattsburg, for respondents.

TRIMBLE, J.

This is a proceeding in mandamus originating in this court and brought by relator to compel the respondents, as judges of the county court of Clinton county, to issue him a license to keep a pool hall in the city of Lathrop. Relator conducted a pool hall in said city, and, upon the expiration of the term for which the license was granted, he applied to the county court for a new license and paid the money required to be paid for such licenses. Relator, in his showing before the county court, proved that he was a fit and proper person to conduct a pool hall; that he was of good moral character; that the location of his pool hall was unobjectionable; and that the city authorities were willing that he should have his pool hall at that location.

No evidence was offered tending to show any reason, peculiar to said applicant or to the location sought, why said license should not be granted, nor did the court find any grounds or reasons applicable either to relator or his location for refusing to grant the license. The license was refused solely for the following reasons: (1) The court did "not think that pool halls are a good thing for any community." (2) "There is a strong sentiment all over the county against pool halls being operated in the county." (3) The court believed "pool halls to be a nuisance."

In addition to the record as herein shown, it was admitted in open court at the oral argument of this case, that relator is a man of good moral character, and that no objection can be made to him or his fitness as a proper person to manage a pool hall or to the location thereof. The sole question presented for our determination, therefore, is whether the county court has power to refuse, without cause, to grant a pool hall license. In other words, can a county court prohibit pool halls altogether by refusing to grant a license therefor merely because it is opposed to them as such, notwithstanding the fact that no objection can be made to the applicant or his location, if any such licenses are to be granted at all?

It is well settled, of course, and no one will dispute it, that county courts have only such authority as is expressly granted them by statute. Butler v. Sullivan County, 108 Mo. 630, 18 S. W. 1142. This must be understood as including all such powers as arise by necessary implication from an express grant. Sheidley v. Lynch, 95 Mo. 487, 8 S. W. 434. Consequently, if the act of the county court is outside of the power conferred upon it, such act is without validity or force. Bayless v. Gibbs, 251 Mo. 492, 158 S. W. 590; State ex rel. v. Patterson, 229 Mo. 364, 373, 129 S. W. 888.

The county court, by section 1193, R. S. Mo. 1909, is given the power to license the keepers of billiard tables and all other tables upon which balls and cues are used. Chapter 14, R. S. Mo. 1909, of which section 1193 is a part, as well as the statutory provisions granting to municipalities the right to license such tables, show that it was the purpose of the Legislature to grant to the county courts and the municipalities the power to license and tax them. State v. Schotts, 143 Mo. App. 346, 128 S. W. 245; McClanahan v. De Witt, 160 Mo. App. 304, 142 S. W. 366. And that power is such an one as the state may grant to such bodies to be exercised by them within the limitations and subject to the restrictions placed upon them in the grant of power. City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202, 41 Am. St. Rep. 678; City of Burlingame v. Thompson, 74 Kan. 393, 86 Pac. 449; Ex parte Brewer (Tex. Cr. App.) 152 S. W. 1068; Cole v. Village of Culbertson, 86 Neb. 160, 125 N. W. 287; McClanahan v. De Witt, 160 Mo. 304, 142 S. W. 366; State v. Shotts, 143 Mo. App. 346, 128 S. W. 245. In McClanahan v. De Witt, 160 Mo. App. supra, loc. cit. 309, 142 S. W. 368, it is said:

"There can be no question but what the general policy of the state is to license billiard and pool tables and that there is no power vested in either the county or the city to prohibit them."

Since the Legislature has delegated the power to license them, and has conferred no power to prohibit them, the county court cannot prohibit them indirectly by refusing to grant a license where no cause exists for such refusal except the desire to prohibit. The power to prohibit cannot be exercised indirectly when it cannot be done directly, and no power to prohibit exists in the absence of an express grant. State v. McCammon, 111 Mo. App. 626, 86 S. W. 510; People v. Grant, 157 Mich. 24, 121 N. W. 300, 133 Am. St. Rep. 329; Shreveport v. Schulsinger, 113 La. 9, 36 South. 870, 2 Ann. Cas. 69; McClanahan v. De Witt, supra.

"The power vested in the officer or public body to grant licenses, unless mandatory in terms, carries with it the right to exercise a reasonable discretion, but this discretion is to be exercised reasonably and not arbitrarily." 25 Cyc. 622. It is a sound judicial discretion based upon reason and not exercised arbitrarily. 23 Cyc. 135; State ex rel. v. Township Board, 188 Mo. App. 266, 269, 175 S. W. 139.

The holding in the case of McClanahan v. De Witt, supra, is that the county court may refuse a license for cause, and that since it was plain in that case...