46 Mo. App. 360 | Mo. Ct. App. | 1891
It appears from the petition, return and accompanying exhibits that the circuit court of Jackson county in a certain proceeding pending before it declared the licenses under which the petitioner was conducting the business of dramshop keeper in a certain block in Kansas City to be void, and adjudged and decreed that he be enjoined “from maintaining or operating a dramshop” until he obtain a valid license from the county court of. Jackson county and the auditor of Kansas City. The petitioner subsequently obtained licenses respectively from the county court of Jackson county and the auditor of Kansas City, the former of which is conceded to be valid. Subsequently,upon an information filed charging the petitioner with violating the injunction, the court caused an order of commitment to he entered of record, which amongst other things alleged that the petitioner “undercolor of a void dramshop licence from the auditor of Kansas City issued
The petitioner’s contention is that so much of the ordinances of 1888, set forth in the order of commitment, as requires an applicant for a dramshop license to first obtain the written consent of the majority of the property-owners within the block or square and fronting on the street where the dramshop is proposed to be opened, and also to produce to the city auditor the certificate, of the city assessor showing the owners of the property whose consent is required to be obtained, before a dramshop license can issue to him, is repealed and superseded by the provisions of the charter framed by the “board of freeholders,” and adopted at the special election in 1889, and that, therefore, the matter alleged in the order of commitment does not in point of law amount to a contempt. This contention presents
This was the state of the ordinances of the city in respect to the licensing and regulating dramshops when the present charter was adopted. The latter declares: “ Before an application for license to keep a saloon, beer house, tippling house or dramshop shall be received or filed by the city auditor, there shall be indorsed thereon a certificate signed by the board of police commissioners that such applicant has proved himself to be a person of good moral character. ■ Whenever such application is presented to the board of police commissioners such board shall cause notice in writing to be served by a policeman upon every resident property-owner in the block where such saloon, beer house, tippling house or dramshop is proposed to be located, designating a day, not less than five days nor more than ten days after service of such notice, when remonstrances, if any, against the issuance of such licenses will be heard by such board. Whenever such application so indorsed as aforesaid by • said board of police commissioners shall be presented to the city auditor he shall issue a license to such applicant.” Charter, 1889, sec. 33, art. 17. By the first section of the article just referred to it is further provided : “ All ordinances, regulations and resolutions in force at the time this charter takes effect and
The ordinances, to which reference has been made, by the clearest implication prohibit the city auditor from issuing a license before the applicant has obtained the written consent of the majority of the property-holders and has presented the certificate of the city assessor as is therein imperatively required. The charter introduces a radical change — a wide departure, in the mode and manner in which city dramshop licenses were to be applied for and obtained from that which was provided in the pre-existing ordinances. The freeholders’ charter invested the board of police commissioners — a body created by the statute of the state — with a power quasi judicial in its nature, to require every applicant for a dramshop license to prove himself to be a person of good moral character before he is entitled to receive such license. And when the applicant had made that proof before this tribunal, and its certificate to that effect is indorsed on his application and presented to the city auditor, the mandate of the charter Is that he shall issue a license to such applicant. But though the applicant be armed with requisite certificate of good character, yet, if he does not meet the requirement of the ordinance in respect to obtaining the consent of the property-owners, the city auditor must deny him a license, notwithstanding the mandate of the charter. The ordinance prohibits the city auditor from
It is well settled that an affirmative enactment of a new rule implies a negative of whatever is not included, or is different; and if by the language used a thing is-limited to be done in a paiticular form or manner it includes a negative that it shall not be. done otherwise. Sutherland on Stat. Const., sec. 140; Wells v. Supervisors, 102 U. S. 635; Chandler v. Hann, 83 Ala. 390. Any regulation prescribing the conditions upon which a. dramshop license may issue which requires the applicant; therefor to obtain the written consent of the majority of the property-owners in the block where it is proposed to open the dramshop, and in addition thereto that the tribunal controlling the issue of such license gives the-property-owners notice to appear and enter their objections, if any they have to the issue of the license, to-which they have already consented, would be justly regarded as unreasonable, if not absurd, in its requirements ; and yet this is just what is required by the said ordinance and charter, if both are in force. If two-statutes can be read together without contradiction, or repugnancy or absurdity or unreasonableness, they should be read together and both will have effect. An intention will not be ascribed to the law-making power to-establish conflicting systems upon the same subject, or to-leave in force provisions of law by which the legislative will may be thwarted and overthrown. .
It is to be further observed that said section 33 of the city charter clothes the. board of police commissioners with the power not only to pass upon the moral character of an applicant for a dramshop license, but goes further and invests it with power to cause notice-in writing to be served upon every resident property-owner in the block where a dramshop is proposed to be-located, designating a day when remonstrances against
The propriety of the issue of a city dramshop license in any given case is under the charter a matter solely within the discretion of the board. When the mode, in which the power of a municipal corporation upon any given subject can be exercised, is a prescribed by the charter, that mode must be followed. First Presbyterian Church v. City, 36 Ind. 338; Moberly v. Wright, 19 Mo. App. 271; Dillon on Mun. Corp. 328, 316, note 1; State v. Ferguson, 33 N. H. 424. Where a statute prescribes an exclusive rule it implies a negative, and repeals whatever of existing law stands in the way •of its operation. Sutherland on Stat. Const., sec. 139. Tested by the rules of construction just adverted to, it seems to me that the charter accomplished the repeal of the ordinances recited in the order of commitment. It is quite true that the charter does not meet and cover all the provisions of the dramshop ordinances of 1888. It does not in the least encroach upon the provisions which relate to the charge for the license. This matter was very properly left subject to the control of the common council by ordinance. The board of freeholders submitted to a vote of the people several alternative propositions embraced in separate sections of the charter, among which was section 44, which provided: “Every license for keeping any saloon * * *
The provisions of the ordinances fixing the license-charge is not so essentially and inseparably connected
The rule of construction applicable here is that where a statute expresses first a general intent, and afterwards an inconsistent particular intent, the latter will be taken as an exception from the former, and both will stand. Sutherland, Stat. Const., sec. 153. It must needs follow that the city licenses received by the petitioner were valid and conferred upon him full authority to sell the intoxicating liquors, which sale was charged and adjudged as constituting a violation of the injunctive order, and that the matter alleged in the order of commitment did not in point of law amount to contempt.
It results from these considerations that the petitioner must be discharged, and it is so ordered.