State v. De Witt

• Citation: 160 Mo. App. 304,142 S.W. 366
• Parties: STATE ex rel. McCLANAHAN v. DE WITT et al.
• Decision Date: 04 December 1911
• Court: Court of Appeal of Missouri (US)

142 S.W. 366

160 Mo. App. 304

STATE ex rel. McCLANAHAN v. DE WITT et al.

Kansas City Court of Appeals, Missouri.

December 4, 1911.

Rehearing Denied January 9, 1912.

1. STATUTES (§ 225)—CONSTRUCTION—REFERENCE TO OTHER STATUTES.

The different sections of the Revision of the Statutes of 1909, relating to the same subject, must for the purpose of construction be regarded as in pari materia.

2. LICENSES (§ 6)—REGULATION OF BILLIARD TABLES — DISCRETION OF COUNTY COURT—AUTHORITY OF MUNICIPALITY.

Under Rev. St. 1909, §§ 1193, 1194, 1196, 1197, 1200, 1202, empowering the county court to license keepers of billiard tables, imposing a penalty against licensed keepers permitting minors to play on such tables without the permission of their parents or guardians, etc., and section 9399, authorizing cities to regulate and license billiard tables and to suppress such tables, the county court has discretionary power to refuse a license when in its opinion there are reasonable grounds to apprehend that the applicant is not a suitable person, or the place is not suitable, and cities may only suppress unlicensed billiard tables.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Mandamus by the State, on the relation of Hedge McClanahan, against W. H. W. De Witt and others, to compel the issuance of a license to conduct a pool hall. From a judgment awarding a peremptory writ, defendants appeal. Reversed.

J. M. Wattenbarger, for appellants. Earl F. Nelson and A. G. Knight, for respondent.

BROADDUS, P. J.

Mandamus. The respondent McClanahan petitioned the county court of Sullivan county for a license to conduct a pool hall in the City of Milan. The appellants are the judges of said court. A remonstrance was filed asking the court to deny the application and refuse the license. The appellants acting in their official capacity denied the application of the relator, the respondent herein. The respondent afterwards applied to the judge of the circuit court of the county for a writ of mandamus to compel the county court to issue such license, whereupon said judge issued an alternative writ of mandamus returnable to the first day of the regular term of the circuit court of the county. On the return day of the writ the appellants filed a motion to quash on the ground of the insufficiency of the petition. The motion was overruled, and, as appellants stood on their motion, the writ was made peremptory. The judges appealed.

The question is not as to the form of the pleadings, but goes to the right of the county court to deny the respondent the license prayed for in his application, which involves a construction of chapter 14, 1 R. S. 1909, entitled, "Billiard and other tables." Section 1193 provides that the county court "shall have power to license the keepers of billiard tables, pigeon hole tables, Jenny Lind tables, and all other tables kept and used for gaming, upon which balls and cues are used. At each term, the clerk of said court shall prepare and deliver to the collector of their counties as many blank licenses for the keepers of such tables, hereinbefore mentioned, as the respective courts shall direct, which shall be signed by the clerk and attested by the seal of the court." Section 1194 provides that the collector of the county "shall deliver to any person who shall have been licensed, a license to keep any such table * * * upon the payment by the applicant" of the amount of the license fee which is fixed at $20 for 12 months time, etc., "and the collector shall countersign such license before delivering the same to the applicant." Section 1196 gives to "the state, county, city or town, as the case may be," a lien upon such tables mentioned in section 1193, "and if the owner or keeper thereof shall fail or refuse to pay to the respective collectors or other persons authorized to collect the same, the amounts of the licenses due the state, county, city or town, within ten days after such table is set up" the collectors are authorized to seize such tables and sell the same at public auction to pay the amount of the licenses. Section 1200 provides for a penalty against every licensed keeper of such table who shall suffer any minor under 21 years of age to play on such table, without the permission of his parents or guardian, as the case may be. Section 1197 provides that the county collector shall be charged with the blank licenses delivered to him for which he is required to account and for each blank that he fails to return he shall pay 50 cents to the clerk. Section 1202 requires that: "Every licensed keeper of one or more of such tables mentioned in section 1193 shall post up in the room where the same is placed one or more placards, having section 1200 conspicuously written * * * thereon," etc.

It is insisted by respondent, the applicant, that said sections are to be construed with reference to section 9399, art. 5, R. S. 1909, entitled "Cities of the fourth class," to which class the city of Milan belongs. This section provides that: "The mayor and board of aldermen shall have the power and authority to regulate and to license, and to levy and collect a license tax on * * * billiard and pool tables and other gaming tables," etc. The subsequent part of the section gives them the power to suppress such tables and also other occupations mentioned.

The different sections relating to the same subject and found in the same revision must for the purpose of construction be regarded as in pari materia. It is contended that the Legislature clearly distinguished between the power to regulate and the...