The State ex rel. Bell v. The St. Louis Club

• Decision Date: 04 December 1894
• Parties: The State ex rel. Bell, Appellant, v. The St. Louis Club
• Court: Missouri Supreme Court

28 S.W. 604

125 Mo. 308

The State ex rel. Bell, Appellant, v. The St. Louis Club

Supreme Court of Missouri, Second Division

December 4, 1894

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Leverett Bell, S. S. Bass and William Zachritz for appellant.

The sale or traffic in liquor in Missouri in quantities of less than three gallons is regulated by statute and is required to be carried on under a license first had and obtained for the purpose, and known as a dramshop license. The business can not be pursued except in conformity with law. If one is a corporation and is for this reason excluded from the class of persons to whom dramshop licenses are issued, it must abstain from the business. This statute is to be observed, not evaded. The business of the defendant in dispensing liquor at its club requires a dramshop license, and can not otherwise lawfully be prosecuted. 1 R. S., p. 723, sec. 2835; Laws of 1891, p. 128; State v. Club, 44 Mo.App. 86; Newark v. Club, 53 N. J. L. 99; People v Soule, 74 Mich. 250; United States v. Whittig, 2 Lowell, 466; People v. Andrews, 115 N.Y. 427; State v. Neis, 108 N.C. 787; State v. Club, 73 Md. 97; Club v. Louisville, 17 S.W. 743; Club v. State, 10 S. Rep. 574; State v. Boston Club, 12 S Rep. 895.

A. & J. F. Lee for respondent.

(1) The act under which the relator claims title to his office is unconstitutional in that it states no fixed term for his office. Session Acts, 1893, p. 149, sec. 1; R. S. 1889, p. 93, sec. 14. That act is unconstitutional, because it is special legislation. Murnane v. St. Louis, 123 Mo. 479. (2) The statutes of this state do not forbid an association incorporated under the acts governing the incorporation of religious, benevolent and educational associations for the purpose of maintaining a clubhouse from dispensing liquor in the manner set forth in the agreed state of facts in this case. Such associations are not, and for the past forty-three years have not, been classed as dramshop keepers nor regulated by the law regulating dramshops or saloons. Session Acts, 1891, p. 128, secs. 1, 2, 4, 8, 21, 28; Graff v. Evans, L. R. 8, Q. B. Div. 373; Commonwealth v. Pomphret, 37 Mass. 564; Commonwealth v. Ewig, 145 Mass. 121; Seim v. Maryland, 55 Md. 566; Club v. Dwyer, 11 Lea, 452; Club v. Commonwealth, 87 Va. 541; State ex rel. v. McMaster, 14 S.E. (S. C.) 290; Borden v. Club, 25 P. 1042; 11 Am. and Eng. Encyclopedia of Law, p. 727; Black on Intoxicating Liquors, sec. 142, p. 185; Koenig v. State, 26 S.W. 835; Bouvier's Law Dic., Retailer; Session Acts, 1840-1841, p. 82; R. S. 1845, p. 542; Session Acts, 1851, p. 56; R. S. 1855, p. 379; Session Acts, 1891, p. 131, sec. 21; R. S. 1855, p. 683, sec. 28; R. S. 1889, secs. 2822, 2829, 6569.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The circuit attorney of the eighth judicial circuit, on October 12, 1893, filed in the circuit court of the city of St. Louis, an information in the nature of a quo warranto, substantially in the following terms:

The relator states that he is the excise commissioner of the city of St. Louis, duly appointed by the governor of this state, under and pursuant to an act of the general assembly entitled, "An act to create the office of excise commissioner," etc., approved March 17, 1893, and that he has exclusive authority to grant dramshop licenses in said city.

That the respondent is a corporation duly organized under article 10 of chapter 42 of the Revised Statutes of the state of Missouri, and that it has, during the six months preceding the filing of this petition, continuously, and every day, including Sundays and holidays, at its premises in the city of St. Louis, on the corner of Locust street and Ewing avenue, sold intoxicating liquors in quantities less than three gallons, which were drunk on said premises, without being licensed as a dramshop keeper, and in violation of the laws of Missouri, and of an act of the general assembly entitled, "An act to regulate the sale of intoxicating liquors in the original packages or otherwise," approved April 20, 1891. Laws of 1891, p. 128.

The relator prays that the above unlawful acts may be inquired into, and that judgment of forfeiture of respondent's charter may be had, and such other relief granted in the premises as is proper, and costs.

The court ordered the respondent to plead to the information on a day named, which it accordingly did by filing an answer, averring the facts set out in the following stipulation:

"It is stipulated in this case that the following are facts: The respondent is a corporation, organized November 25, 1878, under that part of article 8, chapter 37 of the Revised Statutes of this state, and the laws amendatory thereof, in force at that date, concerning the incorporation of benevolent, religious and educational associations; that said organization was made, and has since been continued, for the purpose of forming and maintaining a club; that said club should obtain and maintain a clubhouse for the purpose of advancing, by social intercourse, the bodily and mental health of such persons as might be, or thereafter become, its members, and by the friendly interchange of views and discussion advance the commercial prosperity of the city of St. Louis and obtain a place of common and friendly intercourse of such members with each other; that in order to carry out these purposes respondent, immediately after its incorporation, obtained and has since maintained a clubhouse in said city, said clubhouse having been for the eight years last past at the corner of Locust street and Ewing avenue, in St. Louis, the premises described in the information; that it has kept at all times in said clubhouse spirituous liquors, and said respondent has never had a license to sell liquors from either the city of St. Louis or the state of Missouri, as provided by the dramshop law of the state or the ordinance of the city; that at all times the membership to said club has been limited to four hundred resident members and one hundred and fifty nonresident members; that the actual membership for the year preceding the institution of this suit averaged three hundred and sixty-three resident members and never exceeded four hundred, and averaged about sixty nonresident members and never exceeded seventy-five; that no person was permitted to become a member of the club until he was proposed for membership by a member, and the proposal recommended by two other members of the club, nor unless he was a man of good moral character, twenty-one years of age or over, and not more than one of its board of governors, which board consisted of nine of its members, should, on a vote taken on his admission, have voted against him; and if he desired to become a resident member, it was necessary that he should be personally known to at least one member of its board of governors. Persons becoming resident members were required to pay $ 100 an initiation fee, and $ 80 thereafter annually; nonresident members were required to pay a $ 50 initiation fee and $ 30 annual dues; officers of the army and navy of the United States were elected members in the same manner and upon the same qualifications, except the qualification as to residents, and they were relieved from the payment of an initiation fee. No one could become a nonresident member who did not reside fifty miles or more from the city of St. Louis. The names of persons submitted for membership were at all times subject to investigation and report by a committee on membership, and applicants have been refused admission to the club; all citizens of St. Louis possessing the qualifications above stated to be required of resident members, within the limit of the number above set forth, were qualified to become members of the club.

"The clubhouse is a large building, for which the club pays an annual rent of $ 5,600, all the taxes, insurance and repairs it was furnished at the expense of the club, and contains reception rooms, dining rooms, card rooms, billiard and pool rooms, a tenpin alley, kitchen, storerooms, and bedrooms for employees. There is no place to which the members can resort and be directly served with wine or liquor by the person having the custody thereof, but there is on the first floor of said building a wine room, and in the basement a wine cellar in which stocks of spirituous liquors are kept. At any time, within a year before the institution of this suit, that a member desired to obtain any wine or liquor less than one gallon kept in either stock, he gave his order to a servant of the club, and the servant obtained such wine or liquor from the person having the custody thereof, and served him with the quantity desired; on receiving the wine or liquor, the member was required to sign a card acknowledging the receipt of the wine or liquor, and its price. The rules of the clubhouse forbid any payment to any person serving wine or liquor, and the practice was that the price of the wine or liquor was charged against the account of the member so ordering it, and generally paid by him, in by far the greater number of instances by a check on a bank, but occasionally in cash, within the first ten days of the succeeding month, although there were some instances in which members paid to the clerk of the club said price within the day upon which they received such wine or liquor. In the same manner wine and liquor were served to members in the dining rooms and to their guests, but no charge was made against any guest, nor was he permitted to pay anything on account of said wine or liquors, unless such guest was also a member of the club. Said wines and liquors when so served were consumed within the clubhouse, and were so...