State v. Russell

• Decision Date: 12 May 1908
• Citation: 110 S.W. 667,131 Mo. App. 638
• Parties: STATE ex rel. SCHADE v. RUSSELL, Mayor.
• Court: Missouri Court of Appeals

110 S.W. 667

131 Mo. App. 638

STATE ex rel. SCHADE v. RUSSELL, Mayor.

St. Louis Court of Appeals. Missouri.

May 12, 1908.

1. INTOXICATING LIQUORS — DRAMSHOP LICENSES — ISSUANCE — FOURTH-CLASS CITIES— JURISDICTION OF MAYOR AND ALDERMEN.

Rev. St. 1899, § 5978 (Ann. St. 1906, p. 3019), intrusts to the mayor and board of aldermen in cities of the fourth class the power of regulating the granting of dramshop and other licenses, and authorizes such officers to exercise such power, as they do most of their powers, by ordinance. The sections provide that the mayor's part in the passage of all ordinances shall consist in presiding over the board of aldermen without voting, excepting in case of a tie, and approving ordinances passed by the board or disproving them by withholding his signature, and thereby preventing them from taking effect until re-enacted. Held, that the determination of the question whether a petition for a dramshop license was signed by the required number of petitioners was within the exclusive jurisdiction of the board of aldermen, and that the mayor had no power to review the same.

2. SAME—DECISION OF BOARD—NATURE OF ACT.

In deciding that an applicant for a saloon license in a city of the fourth class has complied with the law so as to entitle himself to a license, the board of aldermen acts judicially, and not in a legislative capacity; and hence the mayor has no discretion to refuse to sign the license because the board ordered it on an insufficient petition, in the absence of fraud.

3. SAME—SIGNATURE BY MAYOR—NATURE OF DUTY.

Rev. St. 1898, § 5951 (Ann. St. 1906, p. 3007), declares that a liquor license shall be signed by the mayor and clerk and countersigned by the collector. Held, the mayor's duty to sign a license duly ordered by the board was ministerial, and not discretionary, and performance may be enforced by mandamus.

Mandamus by the state, on the relation of Conrad Schade, against Robert W. Russell, mayor of the city of Jackson. Writ granted.

This is an original proceeding for the writ of mandamus to compel respondent, as mayor of the city of Jackson, in Cape Girardeau county, to sign a dramshop license issued by the board of aldermen to relator. The facts, as stated, are taken from the statements of the alternative writ. In the month of February, 1908, relator, Conrad Schade, applied to the county court of Cape Girardeau county and the board of aldermen of the city of Jackson to grant him a license to keep a dramshop on part of lot 51 in a certain block described by the streets which bound it. Relator's application to the county court was accompanied by a petition of property owners in due form and properly signed by the proper number of qualified petitioners, and his application for license was in due form and properly verified by affidavit. On March 2d, at the November term of said court, the petition and application were taken up, considered, and an order entered by the court reciting the presentation of a petition of assessed taxpaying citizens and guardians of minors owning property within the block in which lot 51 was situate, praying a license be granted to Conrad Schade to keep a dramshop on said lot; that Schade had presented his application and bond for license as directed by law; that the court had examined the petition and bond, and found the former was signed by a majority of the assessed taxpaying citizens and guardians of minors owning property in the block where the dramshop was to be kept; that the bond was signed by a sufficient number of solvent sureties, and the court, being of the opinion the applicant was a law-abiding, assessed, and taxpaying citizen above 21 years of age, approved his petition and bond, and ordered the clerk of the court to issue a license permitting him to keep a dramshop at the place mentioned for six months on production of receipts of the collector, showing all taxes levied on same had been paid. Afterwards Schade filed the requisite bond with the clerk of the county court, and it was approved by said clerk. The applicant had been conducting a saloon at the same place for two prior license periods, and on the same day (March 2d) filed with the county clerk his affidavit showing the whole amount of liquors received at his stand during the six months next preceding April 6, 1908, and on April 13th filed with said clerk a receipt from the collector of the county showing payment of the following sums of money: State license tax, $100; county license tax, $250; county clerk's fee, $1.75; total, $351.75. Thereupon the clerk of the county court executed and delivered to relator a license under the seal of the county court, empowering relator to keep a dramshop for six months, commencing April 16, 1908, on part of lot 51, in the city of Jackson.

On February 20, 1908, relator filed with the city clerk of said city a duly verified application for a municipal license to keep a dramshop on said lot, accompanied by a petition in due form and signed by the requisite number of competent signers in the block. Certain ordinances of the city of Jackson recited in the alternative writ provided that applications for license as a dramshop keeper should be made in writing to the board of aldermen, accompanied by a petition, and that to authorize the granting of such licenses the petition must be signed by a majority of the resident taxpaying citizens and guardians of minors owning property in the block in which the dramshop was to be kept. Certain other conditions were imposed on applicants for licenses by the ordinances of the city which need not be recited, because there is no contention relator failed to comply with them. The relevant requirements of the ordinances are that an applicant for license shall present a petition signed by a majority of the taxpaying citizens and guardians of minors in the block or square in which the dramshop is to be kept, asking that a license be granted the applicant; that the board of aldermen shall grant a license to an applicant who applies in due form, backed by a proper petition, and gives bond to the city of Jackson, with a penalty of $2,000, signed by two or more solvent sureties, to be approved by the board, conditioned that he will keep an orderly house, etc. The alternative writ recites the application and petition filed by relator with the city clerk complied in every way with the requirements of the laws of Missouri, and with the ordinances of the city of Jackson. At a meeting of the board of aldermen of said city on March 2, 1908, said application and petition were taken up for consideration, and the following order was entered: "Now, is presented a petition of assessed taxpaying citizens and guardians of minors owning property in the block in which lot No. 51 in this city is situated, praying that a license be granted to Conrad Schade to keep a dramshop on part of lot No. 51 as aforesaid; and the said Conrad Schade also presents his application for a license to keep a dramshop at part of lot No. 51 as aforesaid. And the board having examined said petition, finds that it is signed by a majority of the assessed taxpaying citizens and guardians of minors, owning property in the block in which lot No. 51 is situated, and being of the opinion that the applicant is a law-abiding, assessed, taxpaying male citizen above twenty-one years of age, ordered that the petition be approved, and that upon filing of the bond, subject to the approval of the board, the clerk is directed to issue a license to said Conrad Schade to keep a dramshop at the place aforesaid for a term of six months upon the production to him of the collector's receipt showing that all taxes levied on the same have been paid." On March 9, 1908, relator filed with the city clerk his license bond, complying with all the requirements of the ordinances of the city and the law of the state, and signed by sufficient solvent sureties. On the same day the board of aldermen took up, considered and approved said bond by an order entered of record, and ordered the city clerk to issue a license to relator. Thereafter relator took such further steps as were needed to entitle him to a license, which steps we will not recite because there is no dispute about them. On April 16, 1908, the city clerk issued a license to relator to keep a dramshop on the lot aforesaid for six months, commencing April 16, 1908, which license was signed officially by the city clerk and collector, and the seal of the city was affixed to it. Respondent R. W. Russell, the mayor of the city, refused to sign the license, and this proceeding was instituted to compel him to sign it, as it is inoperative until he does. It is alleged his refusal to sign was corrupt, arbitrary, and illegal, and will result in great loss to relator and the sacrifice of the latter's business unless relief is granted by the court. A motion to quash the alternative writ was filed April 17, 1908, chiefly on grounds which have been corrected by amendments. The other grounds stated in said motion are repeated in the return, and may be considered in connection with relator's motion, filed after the return came in, for judgment on the pleadings.

In the return respondent admits he is and was at the dates mentioned in the petition mayor of the city of Jackson, admits relator obtained license from the county court, presented to the board of aldermen of the city an application for license to keep a dramshop at the place mentioned, but denies said application was accompanied by a petition containing the names, as shown by the last previous assessment, of a majority of the taxpaying citizens and guardians of minors owning property in the block in which the dramshop was to be kept. Respondent avers the proceedings of the board of aldermen do not show relator had a majority of such eligible petitioners according to the last previous annual assessment, which assessment he contends must control the decision of what persons...