State ex rel. Hanks & Miller v. Packett , 136 Mo. App. 700 ( 1909 )

ELLISON, J.

The relators filed their petition for a writ of mandamus in the circuit court of Clinton county, to compel the county court of that county to grant them a license to keep a dramshop in the city of Plattsburg, a city of over two thousand inhabitants in such county. The circuit court refused a peremptory writ and relators appealed.

The respondents claim, among other reasons for refusing to issue the license, that Clinton county at a legal election for that purpose, adopted what is commonly known as the Local Option Law, whereby the sale of intoxicating liquors was prohibited under the provisions of article 3, chapter 22, Revised Statutes 1899. The relators insist that such law- was not adopted and that the face of the record in the case shows that while an election was held on the question of the sale of intoxicating liquors, yet it affirmatively appears the law was not adopted.

But respondents make the point at the outset that relators have not made a case for the issuance of the writ even if the hnv was not legally adopted. Under the provisions of sections 2993 and 2997, Revised Statutes 1899, there are two classes of applications and petitions for license to keep a dramshop. In one class, where the city involved contains a population of two thousand or more and a certain character of petition is presented, the law makes it mandatory on the county court to grant the license. In the other class the granting of a license is within the discretion of the county court. [Scarritt v. Jackson County, 89 Mo. App. 593.] In the former class mandamus is a proper remedy to compel the issuance of a license. [State ex rel. v. Mey-ers, 80 Mo. 601; State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. McCammon, 111 Mo. App. 626, 633; Scarritt v. Jackson County, supra; Bean v. County Court, 33 Mo. App. 635.]

But it must appear from the record in a case in which the writ is asked that all legal prerequisites to the issuance of a license exist and that no substantial legal requirement is missing from the conditions which make it the duty of the court to issue the license. Otherwise dereliction on the part of the county court does not appear, and a superior court would find itself in the sit-nation of being asked to compel the doing of that which has not been shown to be proper to do. Applying this test to the record before us, we find that no case was made from which a duty of the county court to issue the license arose.

In order to become mandatory on the county court to issue a license to keep a dramshop in a city of two thousand or more population, such as Plattsburg is alleged to be, a petition must be presented which contains the proper names subscribed thereto of two thirds of the assessed taxpaying citizens and guardians of minors, owning real estate in the block or square where such dramshop is to be kept, “as shown by the last previous annual assessment and vote of the city . . . where such dramshop is to be kept.” [Sec. 2993, Revised Statutes 1899; Scarritt v. Jackson County, 89 Mo. App. 1. c. 594.] In this case it appears by the alternative writ that a petition was presented to the county court which shows the proper petitioners except that it does not state they were properly qualified as shown by the last “vote of the city.” Nor does the record anywhere show this necessary qualification. In the general statutes of 1889 there was no requirement that the petitioner must be a voter as shown by the last vote of the city, but this was amended in the Laws of 1891, p. 128, sec. 4, which was carried into the revision, of 1899, section 2993.

This view is fatal to the issuance of the writ and we affirm the judgment of the trial court denying it.

All concur.