State v. Wooten

• Decision Date: 03 November 1909
• Parties: STATE ex rel. RYAN v. WOOTEN et al.
• Court: Missouri Court of Appeals

122 S.W. 1101

139 Mo. App. 221

STATE ex rel. RYAN v. WOOTEN et al.

Springfield Court of Appeals. Missouri.

November 3, 1909.

On Petition for Rehearing, December 6, 1909.

1. INTOXICATING LIQUORS (§ 69) — LICENSE — DISCRETION AS TO GRANT.

Rev. St. 1899, § 2993 (Ann. St. 1906, p. 1717), providing that, where a petition for a liquor license is signed by two-thirds of the taxpayers in the block, and its requirements are complied with, the county court shall grant such license, is mandatory.

2. INTOXICATING LIQUORS (§ 33) — LOCAL OPTION ELECTION — ORDER — COLLATERAL ATTACK — MANDAMUS.

The findings by the county court, in passing on the question whether a local option election petitioned for shall be ordered, that one-tenth of the qualified voters in the county signed the petition, as required by Rev. St. 1899, § 3027 (Ann. St. 1906, p. 1733), and that a city in the county has less than 2,500 inhabitants which entitles its voters under such section to participate in the election, cannot be attacked on mandamus to compel the issuance of a liquor license pursuant to section 2993 (page 1717).

On Petition for Rehearing.

3. EVIDENCE (§ 12) — JUDICIAL NOTICE — CENSUS OF CITY.

Courts do not take judicial notice of the number of inhabitants of a city because of a mere colorable proceeding by city officers for the purpose of defeating the adoption of the local option law therein, without substantial compliance with Rev. St. 1899, §§ 3028, 6300 (Ann. St. 1906, pp. 1735, 3147), providing for taking the census of cities.

4. CENSUS (§ 9) — MUNICIPAL "CENSUS."

A "census" being "an official enumeration of the inhabitants with details of sex, age, family," etc. (6 Cyc. 725), the census of a city as provided by Rev. St. 1899, §§ 3028, 6300 (Ann. St. 1906, pp. 1735, 3147), means an official enumeration of the inhabitants and a public record thereof.

5. INTOXICATING LIQUORS (§ 33) — ELECTION — ORDER — COLLATERAL ATTACK.

A finding of fact by the county court, in passing on the question whether a local option election petitioned for shall be ordered, that "the pretended census" of a city was "fraudulent and void, and not based on any list, count, or enumeration of the inhabitants," is conclusive on an appellate court, on a collateral attack by mandamus to compel the issuance of a license to sell intoxicating liquors.

Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Action in the name of the State, on the relation of Ed. Ryan, for mandamus to T. C. Wooten and others, as Justices, and B. F. Woodford, as Clerk, of the Lawrence County Court. From a judgment for defendants, relator appeals. Affirmed.

The relator, Ed. Ryan, a citizen of Pierce City, Mo., more than 10 days prior to the first day of the March term, 1909, of the county court of Lawrence county, filed his application for a dramshop license, said dramshop to be kept on lot 1 in block 28 of the city of Pierce City, in Lawrence county, and in every respect complied with the statutory requirements as a dramshop keeper. His application was refused, on the ground that the county court had made an order for the submission of the question of the adoption of local option under article 3, c. 22, of the Revised Statutes of 1899 (Ann. St. 1906, pp. 1733-1740), whereupon the relator filed his petition for mandamus in the circuit court of Lawrence county, praying that said court direct the county court to issue him a license as a dramshop keeper, or show cause for such refusal. An alternative writ of mandamus was issued. In due time the respondents T. C. Wooten, John J. Holt, and James Doyle, justices of the county court of Lawrence county, filed their return to the alternative writ, in which they admitted that the said Ed. Ryan, relator, at the time of filing his petition for a license as a dramshop keeper, possessed all the statutory requirements, and that his petition was in conformity with the requirements of the dramshop law, but that his petition had been denied on the ground that proceedings were pending for a vote under the local option law. The return further stated that, on the 6th day of January, 1909, a petition in due form, signed by one-tenth of the qualified voters of said county who resided outside the corporate limits of the city of Aurora, had been presented to the county court, asking said court to order a special election to be held in Lawrence county to determine whether spirituous and intoxicating liquors, including wine and beer, should be sold outside the corporate limits of the city of Aurora. The return further stated that on the 9th day of January, 1909, after an examination, the county court granted the prayer of the petitioners, ordered a special election to be held for the purpose of determining whether intoxicants should be sold in Lawrence county, and fixed the date of the election and form of tickets, in compliance with article 3, c. 22, Rev. St. 1899. It further appeared from the return that notice of such election was duly published in the papers designated in the order; that the election was held in pursuance to said order; that in due time the votes were canvassed, a majority of the votes cast being against the sale of intoxicating liquors, and the result of the election was duly certified.

There is no contention in this case that the notice of the local option election was not in conformity with the statute, nor is there any objection made by the relator to any of the proceedings of the county court, or as to their regularity in any way, except he contends that Pierce City was an incorporated city within said county at the time the petition for a special election was filed, and thereafter, that it then had a population of more than 2,500 inhabitants, and that the voters in said city were, under the orders of the county court, entitled to vote at such local option election. It further appears from the return of the respondents to the alternative writ that, at the time the petition for said local option election was pending, and its sufficiency was under consideration by the county court, the question arose before the county court as to whether Pierce City had a population of more than 2,500 inhabitants; that as to such question a hearing was had, and the court heard testimony offered by both sides as to the population of Pierce City. Among other evidence considered was a census of Pierce City, purporting to have been officially taken under order of its board of aldermen, for the year 1904, and another for the year 1907, each tending to show a population of more than 2,500 inhabitants. The county court, after hearing all the testimony, upon consideration of the question, found that the city of Aurora was the only town or city within said Lawrence county having a population of more than 2,500 inhabitants, that Pierce City, a city within said county, had a population of less than 2,500 inhabitants, and that the pretended censuses of the said city for 1904 and 1907 were each false, fraudulent, and void, and that the pretended returns and results of each of said censuses were not based upon a list, count, or enumeration of the inhabitants of the said city of Pierce City, whereupon the county court proceeded to order a special election under the local option law as hereinbefore stated.

The relator filed a motion for a peremptory writ and for judgment on the return. This motion was by the circuit court overruled, the alternative writ was quashed, and judgment entered that relator's bill be dismissed. In due time, the relator filed his motion for a new trial, in which he set up that the county court had no authority to declare that the said city of Pierce City did not have 2,500 inhabitants at the time the order was made for holding the local option election. This motion was overruled, and he has perfected his appeal to this court.

W. Cloud and Thos. Carlin, for appellant. Archie L. Hilpirt, Charles L. Henson, and W. B. Skinner, for respondents.

NIXON, P. J. (after stating the facts as above).

The statute concerning dramshops (section 2993, Rev. St. 1899 [Ann. St. 1906, p. 1717]) provides that, when the petition for a dramshop license is signed by two-thirds of the assessed taxpaying citizens in the block, and its requirements are...