State v. Turner

• Decision Date: 27 February 1908
• Parties: STATE ex rel. KEHR v. TURNER et al.
• Court: Missouri Supreme Court

107 S.W. 1064

210 Mo. 77

STATE ex rel. KEHR v. TURNER et al.

Supreme Court of Missouri.

February 27, 1908.

1. INTOXICATING LIQUORS — LICENSE — RIGHT OF APPLICANT.

Defendant presented his application to the county court for a dramshop license, showing that he had fully complied with Rev. St. 1899, § 2993 [Ann. St. 1906, p. 1717], declaring that when compliance therewith is had the "court shall grant the license." The court refused to issue the license, on the ground that relator was not entitled thereto under the act of May 10, 1907 (Laws 1907, p. 257), forbidding the maintenance of a place within five miles of a state educational institution with a certain enrollment of pupils. Held, that said section 2993 was imperative, and if the act of May 10, 1907, was unconstitutional, relator was entitled to the writ.

2. STATUTES — LOCAL LAWS — DRAMSHOP LICENSES.

Act May 10, 1907 (Laws 1907, p. 257), providing that "no dramshop license shall hereafter be granted to any person to keep a dramshop within five miles of any state educational institution which now has enrolled fifteen hundred or more students," was violative of Const. 1875, art. 4, § 53 [Ann. St. 1906, p. 197], prohibiting special or local legislation; it appearing that the State University at Columbia was the only state educational institution which had the designated number of students at the time the act went into effect.

3. CONSTITUTIONAL LAW — CONSTRUCTION — PERSONS WHO MAY QUESTION VALIDITY OF STATUTE.

An applicant for a dramshop license who has complied with all the requirements of the statutes to entitle him to a license is sufficiently interested, to entitle him to question the constitutionality of Act May 10, 1907 (Laws 1907, p. 257), forbidding the location of a dramshop within five miles of the State University.

In Banc. Appeal from Circuit Court, Boone County; W. N. Evans, Special Judge.

Proceedings by the state, on the relation of Karl Kehr, for a writ of mandamus against C. C. Turner and others. From a decree refusing the writ, relator appeals. Reversed.

This is a proceeding by mandamus, instituted by relator in the circuit court of Boone county, against respondents, as judges of the county court of that county, to compel them to issue to him a license to keep a dramshop in the city of Columbia. The allegations of the alternative writ, which are confessed by the return, show that more than 10 days before the September adjourned term, 1907, of Boone county court, the relator filed his application for dramshop license, setting forth that he was an assessed, taxpaying, law-abiding male citizen, above 21 years of age, duly qualified by law, and applying for license to keep a dramshop in the Farley building in one of the blocks of the city. No question is made as to the sufficiency of this application. At the same time relator filed his taxpayer's petition, which was signed by more than two-thirds majority of the owners both of real estate and of property of all descriptions in the block. At the September adjourned term the petition and application were laid before the court, and relator tendered the statutory bond, oath, statement, etc. At the hearing, the county court entered an order finding all the facts necessary to make the granting of license mandatory, but denied the application on account of the provisions of the act of May 10, 1907 (Laws 1907, p. 257), popularly known as the "Five Mile Act." At the October term of the Boone circuit court the relator applied for and obtained an alternative writ of mandamus, which sets out the foregoing matters in great detail. The respondents admitted the allegations of the writ, and pleaded the following provisions of the act of May 10, 1907 (Laws 1907, p. 257), in justification of their refusal to grant the license, viz.: "Section 1. No. dramshop license shall hereafter be granted to any person to keep a dramshop within five miles of any state educational institution which now has enrolled fifteen hundred or more students." Relator filed his motion for the peremptory writ on the ground that this was a local and special act within the prohibition of section 53, art. 4, of the Constitution. This motion was submitted on an agreed state of facts to the effect that the proposed dramshop was within five miles of the State University which had enrolled 1,500 or more students, and that the university was the only one of the state educational institutions which had the required enrollment. The court overruled the motion, and entered its judgment denying the writ. After an unsuccessful motion for a new trial, the relator tendered and filed his bill of exceptions, and now brings this case to this court by appeal.

E. W. Hinton and W. H. Rothwell, for appellant. F. G. Harris and Don. C. Carter, for respondents.

WOODSON, J. (after stating the facts as above).

1. The relator's first contention is that when he presented his application to the county court for a dramshop license, accompanied by the taxpayer's petition, oath, bond, and statement, in compliance with the statutes governing such matters, and that when that court found all the facts in the case in his favor, including the required two-thirds majority of qualified signers to his petition, then, under the provisions of section 2993, Rev. St. 1899 [Ann. St. 1906, p. 1717], it became the duty of the court to grant to him the license prayed for, and that it had no discretion in the matter, and that mandamus is the proper remedy to compel that court to issue the license. If the act of May 10, 1907, is unconstitutional, then, clearly, relator is entitled to have the peremptory writ to issue. This question first came before this court in the case of State ex rel. v. Meyers, 80 Mo. 601, and the court in that case, speaking through Norton, J., on page 609, used the following language: "When a petition is presented under section 5442, Rev. St. 1879, for a license to keep a dramshop in a city containing 2,500 inhabitants or more, if it is signed only by a majority of the assessed taxpaying citizens in the block where the dramshop is proposed to be kept, the county court, in their discretion, may or may not grant the license; but if such petition is signed by two-thirds of the assessed taxpaying citizens of such block or square, and the court is satisfied that the applicant is of good character, section 5438, Rev. St. 1879, declares that the court `shall grant the license.' This language is imperative and mandatory, and deprives the court of discretion in the matter, and imposes on the court the duty of granting license to the applicant, if he be of good character, and complies with all...