State v. Packett

• Decision Date: 03 May 1909
• Citation: 136 Mo. App. 700,119 S.W. 25
• Parties: STATE ex rel. HANKS et al. v. PACKETT et al.
• Court: Missouri Court of Appeals

119 S.W. 25

136 Mo. App. 700

STATE ex rel. HANKS et al. v. PACKETT et al.

Kansas City Court of Appeals, Missouri.

May 3, 1909.

On Rehearing, May 17, 1909.

1. INTOXICATING LIQUORS (§ 71)—LICENSES— ISSUANCE—STATUTES.

Rev. St. 1899, §§ 2993, 2997 (Ann. St. 1906, pp. 1717, 1720), regulating the granting of dramshop licenses, provide for two classes of applications for licenses, under one of which, where the city involved contains a population of 2,000 or more and a petition of the character prescribed is presented, the county court must grant the license; but, in the other class, the granting of a license is within the discretion of the court.

2. INTOXICATING LIQUORS (§ 74) — COMPELLING ISSUANCE OF LIQUOR LICENSES.

Before mandamus lies to compel the county court to issue a license to keep a dramshop in a city of over 2,000 inhabitants, it must appear that the requisites to the issuance of a license prescribed by Rev. St. 1899, §§ 2993, 2997 (Ann. St. 1906, pp. 1717, 1720), exist, for otherwise error of the county court in refusing a license does not appear.

3. INTOXICATING LIQUORS (§ 66)—LICENSES— PROCEEDINGS TO PROCURE—PETITIONERS.

To become mandatory on the county court to issue a license to keep a dramshop in a city of 2,000 or more population, a petition must be presented containing the proper names subscribed thereto of two-thirds of the assessed taxpaying citizens in the block where the dramshop is to be kept, as shown by the last previous annual assessment and vote of the city, as prescribed by Rev. St. 1899, § 2993 (Ann. St. 1906, p. 1717), and, where neither the petition nor the record shows that the petitioners were properly qualified as shown by the last vote of the city, the county court properly refused to issue the license.

On Rehearing.

4. MANDAMUS (§ 154) — PETITION — CONCLUSIVENESS.

The relator in mandamus is bound by the petition therefor, rather than by what he offered to show.

5. INTOXICATING LIQUORS (§ 74) — COMPELLING ISSUANCE OF LIQUOR LICENSE.

Where the petition for mandamus to compel the county court to issue a dramshop license in a city of over 2,000 population set up what relators had endeavored to get the county court to do and what showing they had offered to make to it, and ignored a statutory qualification of the petitioners for the license, required by Rev. St. 1899, §§ 2993, 2997 (Ann. St. 1906, pp. 1717, 1720), and the relators did not offer to show that the petitioners had such qualification and the petition signed by them did not allege that they had such qualification, the refusal of a peremptory writ was proper because of the failure to show that it had become mandatory on the county court to issue the license.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Mandamus by the State, on the relation of John Hanks and another, against A. M. Packett and another to compel the issuance of a dramshop license. From a judgment refusing a peremptory writ, relators appeal. Affirmed.

F. B. Ellis and E. C. Hall, for appellants. H. T. Herndon, Frost & Frost, and W. S. Herndon, for respondents.

ELLISON, J.

The relators filed their petition for a writ of mandamus in the circuit court of Clinton county to compel the county court of that county to grant them a license to keep a dramshop in the city of Plattsburg, a city of over 2,000 inhabitants in such county. The circuit court refused a peremptory writ, and relators appealed.

The respondents claim, among other reasons for refusing to issue the license, that Clinton county, at a legal election for that purpose, adopted what is commonly known as the "local option law," whereby the sale of intoxicating liquors was prohibited under the provisions of article 3, c. 22, Rev. St. 1899 (Ann. St. 1906, p. 1714). The relators insist that such law was not adopted, and that the face of the record in the case shows that, while an election was held on the question of the sale of intoxicating liquors, yet it affirmatively appears the law was not adopted; but respondents make the point at the outset that relators have not made a case for the issuance of the writ, even if the law was not legally adopted. Under the provisions of sections 2993 and 2997, Rev. St. 1899 (Ann. St. 1906, pp. 1717, 1720), there are two classes of applications and petitions for license to keep a dramshop. In one class, where the city involved contains a population of 2,000 or more, and a certain character of petition is presented, the law makes it mandatory on the county court to grant the license. In the other class the granting of a license is within the discretion of the county court. Scarritt v. Jackson County, 89 Mo. App. 593. In the former class mandamus is a proper remedy to compel the issuance of a license. State ex rel. v. Meyers, 80 Mo. 601; State ex rel. v. Ashbrook, 154 Mo. 375, 55 S. W. 627, 48 L. R. A. 265, 77 Am. St. Rep. 765; State ex rel. v. McCammon, 111 Mo. App. 626, 633, 86 S. W. 510; Scarritt v. Jackson County, 89 Mo. App. 585; Bean v. County Court, 33 Mo. App. 635. But it must appear from the record in a case in which the writ is asked that all legal prerequisites to the issuance of a license exist, and that no substantial legal requirement is missing from the conditions which make it the duty of the court to issue the license. Otherwise dereliction on the part of the county court does not appear, and a superior court would find itself in the situation of being asked to compel the doing of that which has not been shown to be proper to do. Applying this test to the record before us, we find that no case was made from which a duty of the county court to issue the license arose.

In order to become mandatory on the county court to issue a license to keep a dramshop in a city of 2,000 or more population such as Plattsburg is alleged to be, a petition must be presented which contains the...