State v. Mulvihill

• Decision Date: 01 June 1905
• Citation: 113 Mo. App. 324,88 S.W. 773
• Parties: STATE ex rel. SAGER v. MULVIHILL.
• Court: Missouri Court of Appeals

88 S.W. 773

113 Mo. App. 324

STATE ex rel. SAGER v. MULVIHILL.

St. Louis Court of Appeals. Missouri.

June 1, 1905.

1. CERTIORARI—AMENDMENT OF RECORD.

In certiorari to remove to the St. Louis Court of Appeals the record of the excise commissioner in relation to granting a dramshop license, the court, on suggestion of a diminution of the record, cannot compel the commissioner to make a record of certain alleged findings and certify them as part of the record.

2. DRAMSHOP LICENSE — JURISDICTION OF COMMISSIONER.

Under Rev. St. 1899, § 2993, and section 2997 as amended by Laws 1901, p. 142, providing that a petition for a dramshop license shall remain in the office of the excise commissioner for 10 days before it can be acted on, and directing that the license, if granted, shall be for 6 months, and may be renewed for another term of 6 months on the petition, where a petition was filed May, 1904, and was not acted on until January, 1905, the commissioner was without jurisdiction to grant a license to continue for a term of 6 months from the latter date.

Certiorari by the state, on relation of Arthur N. Sager, against Thomas E. Mulvihill, in relation to the granting of a dramshop license to Carl Anschuetz. License canceled.

J. F. & R. H. Merryman, for relator.

BLAND, P. J.

This is a certiorari out of this court to remove to this court the record of the excise commissioner of the city of St. Louis in relation to the granting of a dramshop license to Carl Anschuetz. The petition of the taxpayers on which the license was granted, and which is signed or purports to be signed by a majority of the assessed tax-paying citizens and guardians of minors owning property in the block, is as follows: "To the Excise Commissioner of the City of St. Louis: The undersigned, being a majority of the assessed taxpaying citizens and guardians of minors owning property in block No. 3,765, city of St. Louis, petition you to grant Max Anschuetz a license to keep a dramshop at No. northeast corner Delmar avenue and Kingshighway street, in said block, for twelve months." The petition was filed in the office of the excise commissioner on May 10, 1904, and was not acted upon until January 28, 1905, when Carl Anschuetz appeared before the excise commissioner and made the following affidavit (indorsed on the back of the petition):

"State of Missouri, City of St. Louis—ss.: Carl Anschuetz, being duly sworn, on his oath says that the foregoing petitioners comprise a majority of the assessed taxpaying citizens and guardians of minors owning property in block No. ____, in the city of St. Louis, and that the signatures thereto attached are the personal and genuine signatures of the parties therein mentioned; and affiant further states that he is a lawabiding, assessed taxpaying male citizen, of good moral character, of said city, above twenty-one years of age, and that he has not violated the dramshop laws of the state of Missouri, to the best of his knowledge and belief.

"Sworn to and subscribed before me this tenth day of May, 1904. J. M. Seibert, Excise Commissioner.

                    "[Signed] Carl Anschuetz, Applicant."
                

A license was granted Carl Anschuetz for a term of six months, dated January 28, 1905, to expire the 28th of July following. On the request of Carl Anschuetz, this court granted him the privilege of making a defense to the proceeding, and his counsel, in addition to filing a brief in his behalf, has filed written suggestions of what he terms "a diminution of the record." The suggestions are that Max and Carl Anschuetz are one and the same person; that Carl is the true Christian name of Anschuetz, and that Max is a nickname by which he is familiarly known to his friends and acquaintances and to the taxpayers who signed his petition for a dramshop license; and that the excise commissioner found that Carl Anschuetz was the person had in mind by the taxpayers when they signed the petition for the license. The suggestions and allegations are verified by the affidavit of Carl...