State ex rel. Crow v. Page

107 Mo. App. 213 | Mo. Ct. App. | 1904

BLAND, P. J.

On October 23, 1903, William J. Carrigan filed in the clerk’s office of the county court of.Washington county, Missouri, the following petition:

“State of Missouri, county of Washington, ss.

“In the county court. November term, 1903.

“To the honorable the county court of said county:-

“Tour applicant, being desirous of keeping a dram-shop at Potosí in said county, respectfully applies for a license to keep a dramshop at said place for the period of six months, in accordance with the statute in such ease made and provided.

“William J. Carrigan,

“Applicant.”

“petition eor license eor dramshop keeper.

“State of Missouri, county of Washington, ss.

“In the county court. November term. A. D., 1903.

‘ ‘ To the honorable county court of said county:

“The undersigned, your petitioners, assessed taxpaying citizens and guardians of minors owning property in the city of Potosí, in said county, respectfully petition and ask your honorable body to grant a license to William J. Carrigan to keep a dramshop at his stand on part of lot 19, Old Village Mine a Breton, now Potosí, for a period of six months, in accordance with.the statutes, in such cases made and provided.

“Signed.

“Petitioners’ Names. Petitioners’ Names.”

On November 5, at the November term, 1903, the county court on said petition made the following order:

“State of Missouri, county of Washington, ss.

“November Term, 1903.

“In the county court of said county, on the fifth day of November, 1903, the following, among other proceedings, were had, viz:

“Now at this day comes Wm. Carrigan and presents to the court here an application in writing and a petition to keep a dramshop at his stand on part of lot 19, Old Village of Mine a Breton, now Potosi, Washington county, Missouri, which being examined by the court is found to contain a majority of the assessed taxpaying citizens of said town of Potosi. It is therefore ordered by the court said petition be accepted and approved and that a license be granted to the said Wm. Carrigan to keep a dramshop aforesaid. ’ ’

A license was issued to Carrigan on the above order to keep a dramshop for a period’ of six months.

On April 21, 1904, the relator, Edward C. Crow, attorney-general, filed in this court a petition asking that a writ of certiorari directed to the respondents, justices of the county court, commanding said court to send before this court the records and proceedings in respect to the order granting a license to Carrigan to keep a dramshop and prayed that the license issued to Carrigan be declared null and void. To the writ issued upon the petition, the respondents, as justices of the county court of Washington county, have returned to us a transcript of all the records and proceedings pertaining to the application of said Carrigan for a dramshop license. This court takes judicial notice that Potosi is a city with less than two thousand inhabitants. In cities of less than two thousand inhabitants it is declared by section 2997, Revised' Statutes 1899, as amended in 1901 (Laws of 1901, p. 142), that it shall not be lawful for any county court to issue a license to keep a dramshop in any such town until a majority, both of the assessed taxpaying citizens and guardians of minors owning property therein in the block or square in which the dramshop is to be kept, shall sign a petition asking for such license to keep a dramshop therein. Section 2993, Revised Statutes 1899, provides' that one to be qualified to keep a dramshop must be a “law-abiding, assessed, taxpaying male citizen, above twenty-one years of age.” The power conferred on the county court to grant dram-shop licenses is purely statutory and can be exercised only when all the requirements of the statutes in respect thereto have been complied with and it is the duty of the county court, when it attempts to exercise this power, to ascertain for itself that the petitioner has obtained the signatures of a majority of the taxpaying citizens and guardians of minors owning property in the locality to be affected by the dramshop as required by section 2997, supra, and also that the applicant is “a law-abiding, assessed', taxpaying male citizen above twenty-one years of age.” That the court has considered the application and petition and investigated and found that the statutes have been complied with in every particular and that the applicant possesses the requisite qualifications to be licensed, must appear affirmatively upon the face of the proceedings to validate the license, has been repeatedly held' to be the law in this State. State ex rel. Campbell v. Heege, 37 Mo. App. 338; State ex rel. Harrah v. Cauthorn, 40 Mo. App. 94; State ex rel. Reider v. County Court, 45 Mo. App. 387; State ex rel. v. Mayor, etc., of Neosho, 57 Mo. App. 192; State ex rel. v. Higgins, 71 Mo. App. 180; State ex rel. v. Scott; 96 Mo. App. 620. Tested by these authorities, the order granting the license to Carrigan is insufficient for the following reasons: The petition does not purport to be signed by a majority of the taxpaying citizens and guardians of minors owning property in the bloclf or square where the dramshop is located, nor does the order of the county court granting the license find as a matter of fact, that a majority of the taxpaying citizens and guardians of minors owning property in said block signed said petition. It is also insufficient in that the county court did not find that Wm. J. Carrigan is a law-abiding, assessed, taxpaying, male citizen, above twenty-one years of age. These facts are jurisdictional. Their absence from the record is fatal to the order of the county court granting the license, wherefore, it is considered and adjudged that the license be, and the same is, hereby declared null and void.

Reyburn and Goode, JJ., concur.