State v. Duncan

• Decision Date: 12 July 1910
• Citation: 150 Mo. App. 403,130 S.W. 496
• Parties: STATE ex rel. STOUT et al. v. DUNCAN et al.
• Court: Missouri Court of Appeals

130 S.W. 496

150 Mo. App. 403

STATE ex rel. STOUT et al. v. DUNCAN et al.

St. Louis Court of Appeals. Missouri.

July 12, 1910.

1. INTOXICATING LIQUORS (§ 76)—LICENSE TO SELL—GRANT—CERTIORARI—QUESTIONS REVIEWABLE—EVIDENCE.

Under the rule that certiorari brings up for review only the record proper and not the evidence, on certiorari to review an order of the county court granting a dramshop license, the court will not review the evidence on which the court acted in determining the number of signers to the petition for the license and the remonstrance, though the court in its order entered a recital of the evidence.

2. INTOXICATING LIQUORS (§ 59) — LIQUOR LICENSES—CONDITIONS PRECEDENT — STATUTES.

Sess. Acts 1907, p. 254, providing that a license shall not be granted to keep a dramshop in a building kept for an immoral purpose, nor in any room of a building connected by any means of communication with any room used for an immoral purpose, is a prohibition and restriction on the power of the county court to grant a license to any one to keep a dramshop in any place so situate, and it must affirmatively appear that the dramshop is not to be kept at any place so situate, and unless it does affirmatively appear somewhere in the record, either in the application for the license or in the order granting it, that this state of facts exists, the county court is without jurisdiction to grant a license.

3. INTOXICATING LIQUORS (§ 71)—LIQUOR LICENSES—CONDITIONS PRECEDENT—STATUTES.

A recital in the order of the county court granting a dramshop license that the applicant's application conforms to Sess. Acts 1907, p. 254, prohibiting the granting of a license to keep a dramshop in a building kept for an immoral purpose, does not show a compliance with the statute, for the recital is a mere statement of a conclusion, and is insufficient to show jurisdiction to grant a license.

Appeal from Cape Girardeau Court of Common Pleas; Robt. G. Ranney, Judge.

Certiorari by the State, on the relation of Laura B. Stout and others, against Byrd Duncan and others, to review an order of the County Court issuing a dramshop license. From an order quashing the issuance of the license and vacating it, defendants appeal. Affirmed.

This is an appeal by the justices of the county court of Butler county and one Gage from the action of the Cape Girardeau court of common pleas, in quashing the order of the county court issuing a dramshop license to Gage and vacating the license. The record of the county court was originally brought into the circuit court of Butler county by writ of certiorari issued out of the latter court, whereupon the cause was sent on change of venue to the Cape Girardeau court of common pleas and there heard.

It appears by the abstract of the record on file that on or about the 28th of January, 1910, Gage applied to the county court of Butler county for a license as dramshop keeper. The application sets out the desire of Gage to keep a dramshop at a certain lot on Main street, described, in Neelyville in that county, in a building described as "a one-story frame building, shingle roof, with one door and two windows in front, and one door in rear, and one window in south side; said building not being connected in any way with any other building, and belonging to E. L. Abington." The application further states that the applicant is "not disqualified under any law of this state to receive license to keep a dramshop; that he is not the agent or representative of or partner with any person so disqualified; that he is not the agent, employé, or representative of any person engaged in the manufacture or sale of intoxicating liquors"; and that he is the owner of the dramshop, license to keep which the application is made. These are substantially all the statements. This was duly sworn to and is accompanied by a petition of 34 persons, claiming to be assessed taxpaying citizens and guardians of minors, owning property in the block in which the lot is located. The statutory oaths (sections 2288 and 2291, Rev. St. 1899, [Ann. St. 1906, p. 1433]) were filed, a bond against the sale of adulterated liquors, and bonds against the sale or disposition of intoxicating liquors in any quantities to minors and against violation of any provisions of the laws of this state concerning dramshops, etc., and to pay all fines, etc., which may be assessed, were duly executed, and appear to have been approved. A remonstrance was filed against granting the license, the number of signatures to which does not appear. On the 9th of February, 1910, and during the February term of the court, the county court of Butler county entered up the following order or judgment: "Now at this day comes the above-named applicant, G. L. Gage, and presents to the court his application for a license to keep a dramshop for the next six months, at the town of Neelyville, county of Butler, state of Missouri, and thereupon comes W. L. Biggs, W. B. Davis, and others, taxpaying citizens of the town of Neelyville, and present their remonstrance to the granting of such license, and this cause is submitted to the court upon the pleadings and proof adduced, and the court, now having seen and heard all the evidence offered, and having carefully examined the said application, and all the papers filed with said application, and being fully advised in the premises, find that the applicant is an assessed, taxpaying, lawabiding, male citizen above the age of 21 years, residing within the town of Neelyville, county of Butler, state of Missouri; that the town of Neelyville is an incorporated town situated in Butler county, Mo.; that applicant's petition asking for said license contains the signatures of a majority of the assessed taxpaying citizens and guardians of minors owning property in the town of Neelyville and in the block or square where the saloon is to be located, as ascertained from the last previous annual assessment, to wit, the assessment based on the ownership of property on the 1st day of June, 1908, filed January 21, 1909; that more than 10 days before the first day of this term of court the applicant filed said petition in the office of the clerk of this court, where the same has remained on file ever since that time for public inspection, that no minor or other ineligible person has signed said petition, nor have they been counted for or against the same; that at the time of filing said application for a license the applicant filed in the office of the clerk of this court his statement in writing, verified by affidavit, of the value of the full amount of all intoxicating liquors received at his dramshop within the six months next before the date of statement; that at the time of filing said application for a license the applicant filed an affidavit required by sections 2288 and 2291, Rev. St. 1899; that applicant has also filed bonds required by sections 2288 and 2995 as amended and approved May 13, 1907; and that said bonds are sufficient. The court further finds that applicant's application in all things conforms to the requirements of section 2993a of dramshop law approved May 13, 1907. Wherefore, it was ordered by the court that said application be and the same is hereby sustained; that said bonds be and they are hereby approved; and that, upon payment to the collector of the revenue for Butler county of the sum of $400, the clerk of this court issue to the applicant a license to keep a dramshop in the town of Neelyville for a period of six months, beginning the 9th day of February, 1910, and ending the 8th day of August, 1910."

Thereupon a writ of certiorari issued out of the circuit court of Butler county which, as before stated, was taken on change of venue to the Cape Girardeau court of common pleas, upon the application of Gage, and apparently by consent of all parties. Upon hearing there it was adjudged by the last-named court that the order and judgment of the Butler county court granting a dramshop license to Gage for a period of six months to conduct a dramshop in Neelyville, be and is...