City of Craig v. Smith

31 Mo. App. 286 | Mo. Ct. App. | 1888

Ellison, J.

I am of the opinion that the city of Craig had no authority to accept a note of a dram-shop keeper for Ms license, and that such note is void. As a city of the fourth, class it has power to license dram-shops at a rate to be fixed by ordinance. And it is provided by section 4956, Revised Statutes, that: “When the board of aldermen shall fix the rate of taxation, the clerk of the board shall charge the collector with the full amount of such taxes levied and to be collected, together with all licenses of every kind to be collected, and it shall be the duty of said collector to pay into the treasury weekly all moneys collected by him, taking a duplicate' receipt therefor, one copy of which he shall file with the clerk; and it shall be the duty of such clerk to report to the mayor any failure of the collector to deposit the weekly collections as herein provided.”

When a dram-shop license is fixed by ordinance and the license is delivered to the collector he is charged with the amount and becomes responsible to the city for such amount if the license be delivered. The city has no authority to adopt the credit system. The money should be paid before the delivery of the license, or at least concurrently with its delivery. This view is sustained by the Supreme Court in analogous cases: State ex rel. v. Spencer, 49 Mo. 342; State ex rel. v. Maguire, 52 Mo. 420.

It appears in this case, from a journal entry of the board of aldermen, that “the mayor was instructed by a vote of the board of aldermen to take a properly secured note for two hundred and fifty dollars as part payment for license tax for dramshop ; said note to run three months from date.” This was without authority of law and was not binding on the collector. The mayor has no part in the collection of a dram-shop license, further than as a member of the board he may take part in the municipal legislation on that subject. It is the collector’s duty under section 4956, Revised Statutes, to collect such license.

I consider the note void and shall, therefore, reverse the judgment.

All concur.