State v. Fields

• Decision Date: 16 June 1924
• Docket Number: No. 15092.,15092.
• Citation: 218 Mo. App. 155,263 S.W. 853
• Parties: STATE ex rel. WAGNER et al. v. FIELDS, Mayor, et al.
• Court: Missouri Court of Appeals

263 S.W. 853

218 Mo. App. 155

STATE ex rel. WAGNER et al. v. FIELDS, Mayor, et al.

No. 15092.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

Appeal from Circuit Court, Gentry County; A. M. Tibbels, Special Judge.

Suit by State of Missouri, at the relation of Charles Wagner and another, against Victor Fields, Mayor, and Jamie Norman and others, members of the Board of Aldermen of Stanberry, Mo., a municipal corporation, for mandamus. From a judgment for relators, respondents appeal. Reversed and remanded, with directions.

Cook & Cummins, of Maryville, and E. C. Lockwood and W. J. Judd, both of Stanberry, for appellants.

McCaffrey & Cook, of Maryville, for respondents.

TRIMBLE, P. J.

Mandamus, brought in the circuit court of Gentry county, Mo., on December 10, 1923, against the mayor and board of aldermen of the city of Stanberry, Mo., to compel them to issue to relators a license to operate pool and billiard tables in said city.

The alternative writ was issued on said date, reciting that whereas it had been represented to the court "as set forth in a certain petition for a writ of mandamus, a copy of which petition is hereto attached," and, the court being willing that due and speedy justice be done, respondents were commanded to "issue a license" to relators "to operate and maintain five pool and billiard tables in Stanberry, Mo., for a period of one year from December 4, 1923," or show cause why they should not do so.

Treating the petition attached to the alternative writ as a part thereof said writ sets forth that respondents are, respectively, mayor and members of the board of aldermen of Stanberry, a city of the fourth class; that on December 4, 1923, at a regular meeting of the board, the relators presented their petition and application

"for license to operate five pool tables and one billiard table for a term of one year in said city and on the first floor of a two-story brick business building located in said city, and tendered to said mayor and said board of aldermen the necessary license fee therefor; but said mayor and said board of aldermen, arbitrarily and without cause, refused to issue said license to relators.

"Relators say that they are fit and proper persons to operate said pool and billiard tables, and the place and building where they propose to operate and maintain said pool and billiard tables is a fit and proper place.

"Relators say that prior to their application to respondents herein for said license, they had issued to them a state and county license, as provided by law, to operate and maintain said pool and billiard tables at said place, and had and have a large amount of money invested in equipment necessary in the operation and maintenance of said pool and billiard tables.

"Relators say that the refusal of respondents to issue to them a license was without cause and arbitrary.

"Relators say that they have no adequate remedy at law and will be without relief unless the relief herein prayed for be granted to them.

"Wherefore, relators pray this honorable court to issue against the said * * * as mayor and * * * as members of the board of aldermen * * * a writ of mandamus commanding them to issue to relators a license to operate and maintain five pool and one billiard table, from a period of one year from the said 4th day of December, 1923, in the city of Stanberry, Mo.," etc.

The return to the alternative writ set up that relators ought not to have a peremptory writ of mandamus, because —

"The respondents, as mayor and members of the board of aldermen of the said city of Stanberry, have not refused to relators a license to operate five pool tables and one billiard table in the city of Stanberry, as alleged in the petition of relators herein, but aver the facts to be that:

"At a regular meeting of the board of aldermen of the city of Stanberry, held in said city oh the 4th day of December, 1023, the relators, with their attorneys, McCaffrey and Cook, appeared before said mayor and board of aldermen and presented their application for a license from the city of Stanberry to operate five pool tables and one billiard table in said city for the period of one year, and presented with said application a license theretofore issued to them by the county court of Gentry county, Mo., and tendered to the city clerk the fees for such license as required by the city ordinances of the city of Stanberry, as alleged in their petition herein.

"That thereupon one Wray Besinger made oral objection to the granting of said license by the city of Stanberry, alleging, among other things, that the relators were not fit persons to conduct a pool hall, that minors had been permitted to play in said pool hall as theretofore conducted and the said pool hall had not been properly conducted in other respects.

"The relators offering no proof of their fitness to conduct a pool hall, it was moved by Councilman Norman and seconded by Councilwoman Henrietta McCaslin, to postpone the hearing on the application for license to December 11, 1923, and if license was then issued, to date back to December 4, 1923. Said motion being put was duly carried.

"Thereafter, on the 11th day of December, 1923, the board of aldermen of the city of Stanberry met pursuant to adjournment of December 4, 1923, the mayor and all members of the board of aldermen being present, for the purpose of hearing the application of relators, Wagner and Ficklin, for license to keep pool and billiard tables in the city of Stanberry and a remonstrance against said application. The city clerk then read to the board of aldermen the formal remonstrance in writing against the granting of said application, theretofore filed with him on the 10th day of December, 1923, which said remonstrance * * * is in words and figures as follows, to wit:

"`To the honorable mayor and board of aldermen of the city of Stanberry, Mo.:

"`We, the undersigned citizens of Stanberry, Mo., hereby protest against the city of Stanberry granting the application of Wagner and Ficklin for a license to operate pool hall in the city of Stanberry, Mo.; and for our grounds of protest state that the applicants are not proper persons to operate and conduct a pool hall, for the following reasons:

"`First. That the pool hall for which license is requested, as it has been heretofore and is now conducted, has been and is a habitual loafing place for large numbers of minors, and as such it inculcates and encourages idleness, bad habits and disrespect for law among the boys and young men of the community.

"`Second. That the proprietors and patrons of said pool hall habitually indulge in loud, profane and indecent language in said pool hall, to the annoyance and disturbance of people passing and in adjoining premises.

"`Third. That one of said applicants, Walker Ficklin, is addicted to the habitual use of intoxicating liquors to excess, and at such times is loud, boisterous and profane in his language and conduct.

"`Fourth. That persons have been permitted to stay in said pool hall while intoxicated, and have been given refuge there to avoid arrest by the city marshal.

"`Fifth. That minors have been permitted to play on the tables in said pool hall without the permission of their parents and guardians, and in violation of law.

"`[ Signed]

                  " `J. H. Besinger.   Sarilda Cranor
                  " `Wray Besinger.    A. A. Reynolds
                  " `Florence Noel.    Alice C. Reece
                  " `Cuma Besinger.    Ada Moore
                  " `W. O. Garner.     J. I. Reece
                  " `James A. Martin.  Rose Reece.
                  " `H. J. Wiseley.    Golda Stafford.'"
                

The return further set that the city clerk—

"mailed a copy of the remonstrance to McCaffrey & Cook, Maryville, Mo. The relators herein, Wagner and Ficklin, made no appearance at said meeting of the board of aldermen held on the 11th day of December, 1923, but defaulted."

The return further set up that on the day before the board of aldermen were to meet pursuant to adjournment, to wit, on December 10, 1923, relators applied for and obtained the alternative writ, and at the meeting of the board held on December 11th, to which the board had adjourned, relators did not appear; and it appearing to the board that the writ of mandamus had been applied for and obtained, returnable on the 20th of December, 1923, it was deemed that further proceeding should be stayed until the court could hear said matter, wherefore the board of aldermen had continued the hearing of said application for a license until the next regular meeting of the board to be held on January 1, 1924.

The return further set up that —

"By the provisions of section 8497 of the Revised Statutes of Missouri 1919, governing cities of the fourth class, the said mayor and board of aldermen, respondents herein, have power and authority to license, tax, regulate or suppress billiard tables, pool and other gaming tables within the corporate limits of the city of Stanberry, and that said statutes confer upon these relators the power to refuse such license for cause shown; that the remonstrance lodged against the application of relators for such license, and filed with the city clerk as heretofore set forth, sets forth good cause for refusing such license to relators, if found by the board of aldermen, on hearing had thereon, to be true; that as against said remonstrance the relators herein have offered no proof that they are fit and proper persons to operate pool and billiard tables in the city of Stanberry; that these respondents aver that they are ready and willing to hear said application for license if again presented on the first day of January, 1924, as set forth in the record of their proceedings as the board of aldermen of said city, held on the 11th day of December, 1923; that the discretion given by law to these respondents to hear said application and the remonstrance lodged thereto, and the testimony in support of said application and against the same, and to grant or refuse said application as in the...