State v. Miller

• Decision Date: 03 March 1908
• Citation: 129 Mo. App. 390,108 S.W. 603
• Parties: STATE ex rel. CRABBE v. MILLER.
• Court: Missouri Court of Appeals

108 S.W. 603

129 Mo. App. 390

STATE ex rel. CRABBE v. MILLER.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

1. INTOXICATING LIQUORS—ISSUANCE OF LICENSE—MANDAMUS.

In proceedings to compel the issuance of a dramshop license, it appeared that on November 8th the county court entered an order approving a petition for a license, and on December 11th, at an adjourned term, the court revoked the order, on the ground that the same was unauthorized. The petitioner's old license did not expire until December 25th, and the application was intended by petitioner to evade the effect of a coming election under the local option law, which took place on December 7th, and resulted in prohibiting the sale of intoxicating liquors in the county. Petitioner did not ask for a new license until December 5th, and on December 6th he obtained an alternative writ to be returned on December 18th, which would be after the result of the election was known. Held, that the circuit court rightly refused to compel a license to be issued pursuant to the order of the county court of November 8th.

2. MANDAMUS—REFUSAL OF WRIT—GROUNDS.

Matters arising after an alternative writ of mandamus is issued, which make it improper for respondent to do the act the relator seeks to compel, afford ground for refusing a peremptory writ.

3. INTOXICATING LIQUORS—ISSUANCE OF LICENSE—MANDAMUS.

In case of doubt as to the right of relator to a mandate compelling the granting of a license to him, it is the duty of the court to resolve the doubt against him.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Proceeding for writ of mandamus by the state, on the relation of Frank W. Crabbe, against Frank M. Miller, clerk of the county court, and another, to compel performance of certain alleged duties imposed by statute relating to dramshop licenses. From a refusal to grant a peremptory writ, relator appeals. Affirmed.

F. H. McCullough, for appellant. J. C. Dorian and L. F. Cottey, for respondent.

GOODE, J.

On November 8, 1907, the county court of Knox county entered of record an order approving the petition of relator, Crabbe, for a license to keep a dramshop "at his stand on the north part of lot 8, block 9, in the county addition to the town of Edina," and ordered that a license be issued to him. Afterwards the county court adjourned until December 10, 1907. December 11th, at this adjourned term, the court entered of record an order revoking the prior order of November 8th, granting the license to Crabbe. In the order of revocation the court recited that after due investigation it decided the order made November 8th was premature; further, that it had no power to issue, or cause to be issued, a dramshop license in vacation, nor during the time the applicant had a license to conduct a dramshop at the place designated in his petition, and that Crabbe had made no tender of his old license then in force to be canceled by the court before issuing a new license, and it was the intention of the court at the time the order of November 8th was made that a new license should not be issued until Crabbe's old license had expired, and that the court was then ignorant of when the old license expired, and was deceived by Crabbe's application for a new one. It should be stated that, when Crabbe petitioned for the license granted on November 8th, he was operating a saloon at the stand described in his petition, under a license theretofore issued to Crabbe & Swann, which did not expire until December 25, 1907. It was to this old license the county court referred in its order of revocation. Prior to December 11th, when said order was entered, and on December 5th, Crabbe, for the first time, requested the clerk of the county court to issue a license to him in conformity to the order made on November 8th. On December 7th, two days later than this demand on the clerk, an election was to be held under the local option law to determine whether or not intoxicating liquors should be sold in Knox county. This election was duly held, and resulted in prohibiting the sale of intoxicating liquors in said county. It seems the election had been ordered at the November term of the county court the day previous to the approval of Crabbe's petition for a license. The present case is a proceeding for the writ of mandamus to compel Frank Miller, clerk of the county court, and Daniel Ryan, collector of the revenue of Knox county, to perform certain duties imposed on them by statutes relating to dramshop licenses. One of the sections of the dramshop law says the clerk of the county court shall deliver to the collector of the county, without delay, a statement of the licenses granted at each term, the amount of tax levied on each license for state and county purposes, including the ad valorem tax, and shall charge the collector with the amount contained in every such statement, and give him a receipt for the same. The next section requires the collector to collect from the persons named in the clerk's statement the amount specified as levied on each license, and give a receipt for same. The next section forbids the clerk to deliver a license to any one until the...