State v. Johnson

• Decision Date: 09 May 1919
• Docket Number: No. 2490.,2490.
• Citation: 211 S.W. 682
• Parties: STATE ex rel. and to Use of OETKER v. JOHNSON et al., Judges.
• Court: Missouri Court of Appeals

211 S.W. 682

STATE ex rel. and to Use of OETKER v. JOHNSON et al., Judges.

No. 2490.

Springfield Court of Appeals. Missouri.

May 9, 1919.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Mandamus by the State, on the relation of and to use of A. E. Oetker, against Wood T. Johnson and others, Judges of the Christian County Circuit Court. From judgment for respondents, relator appeals. Reversed and remanded with directions to issue peremptory writ.

Moore, Barrett & Moore, of Ozark, for appellant. W. L. Vandeventer, of Ozark, for respondents.

BRADLEY, J.

This is a proceeding in mandamus commenced in the circuit court to compel the county court of Christian county to issue a license to defendant to operate pool tables. Relator had been operating a pool room containing three tables in the city of Billings, Mo., for three years. His license having expired, he, on December 30, 1918, applied to the county court for a license to operate three tables, and tendered the lawful tax or license fee. Relator filed with his application a recommendation signed by numerous citizens of Billings certifying that relator was a good, law-abiding citizen, and that he operated his pool hall in a lawful way, and permitted no wrongful conduct about his place. On November 6, 1918, before relator's license had expired, numerous citizens of Billings filed a remonstrance with the county court in which they earnestly protested "against the issuance of a license authorizing any person or persons to operate or conduct a pool room in this city." December 6, 1918, the mayor and board of aldermen of Billings resolved:

"That it is the sense of this body that it is strongly against the best interests of the city to have or permit the operation of a public pool room within the said city, and that we urgently protest against the issuance of a license by the county court of Christian county to any person to operate a pool room in said city."

A certified copy of this resolution was filed with the county court. The city of Billings had already issued to relator license to operate three tables. On December 31st the county court refused to issue the license by an order as follows:

"Ordered by the court that a pool table license petitioned for by Amos Oetker be rejected and not allowed for the reason of the resolution passed by the city council of the city of Billings, Mo., and the remonstrance filed herein."

Relator pleaded the above facts; also that he was of good moral character, and that his place of business was not in close proximity to any church or schoolhouse, and that there was no objection to where his pool room was located, and that there was no objection as to the manner in which he conducted his pool room. Concluding his petition for the writ of mandamus, relator charges:

"That said court, composed of the said respondents herein or their predecessors in office, by their finding and judgment in the refusal of relator's application for pool hall license, acted under the misapprehension that, as such court as aforesaid, they had the right to prohibit the operation of a pool hall in said county indirectly by arbitrarily refusing to license where no cause existed or now exists for such refusal except the desire of the court and some of the citizens to prohibit, which cannot be done directly or indirectly under and by virtue of the laws of the state of Missouri." .

The respondents waived issuance of the alternative writ, appeared, and demurred on the grounds:

"(1) That the petition itself shows that the county court was not acting arbitrarily with a view merely to prohibit, but was exercising judicial discretion, and therefore not subject to mandamus by this court; (2) because the facts stated in the petition show that the county court did not refuse the license without cause; (3) because the petition as a whole does not state facts sufficient to entitle relator to relief sought."

The...