199 Mo. App. 668 | Mo. Ct. App. | 1918
Relator, a foreign corporation engaged in the manufacture and sale of beer at Quincy, Illinois, brought mandamus to compel the- respondent, the Quincy, Omaha & Kansas City Railroad Company, “to receive, accept, transport, carry and deliver .beer offered to it over its said line of railroad” from Kansas City, Missouri, to ■ and through the towns of Kirksville and Novinger in Adair county. The alternative writ was issued and respondent filed a demurrer which the court sustained, and from this order the relator has appealed.
The petition for the writ, after alleging the organization of the relator and the existence of respondent as a common carrier with a line of railroad from Kansas City, Missouri, to Novinger and Kirksville in Adair county, with depots ánd stations to receive and deliver goods carried, set up that “for a long time it had and still has a large number of customers in Adair county and particularly in the cities of Kirksville and Novinger in said county from whom it received orders for its beer and to whom it supplied the same;” that said beer was shipped over respondent’s line of railway and said business was very profitable. The petition further alleged that it was the legal duty of respondent, as a common carrier, to receive, carry, transport, and deliver “all beer offered to it” and which is .to be delivered at the depots and stations on its line where the same is offered for shipment on orders received by relator and the beer is intended and is for the -consignee’s own personal and family use.
The petition also discloses that the Prosecuting Attorney of Adair county had warned or notified the
We have set forth the foregoing substance of the petition in order to show that the sole purpose and end sought is to compel the acceptance, transportation and delivery of all beer offered for transportation and not the specific case of beer mentioned therein. While the petition does allege that a ^case of beer was presented for shipment, in answer to a written order (on one of defendant’s blanks) from one Thomas, stating that it was for his own and family use, yet the petition does not seek to compel the acceptance and' transportation of that particular shipment but is wholly directed to compelling the acceptance 'of all beer offered by relator for transportation and delivery over respondent’s line. The alternative writ does not direct the respondent to accept and transport the particular case of beer alleged to have been ordered by Thomas but to accept, transport and deliver “all beer offered to you” by
For the purposes of the consideration of the demurrer it was agreed that the Local Option Law was in effect in Kirkville and in Adair county. That being true, it is unlawful “to keep, store, or deliver for or to another person” any intoxicating liquor in that county except in those instances where a person has ordered the liquor for his own or family use, and where such liquor is sent direct to the person using the same. [Sections 7227, 7228 and 7229, R. S. 1909.] If the liquor were shipped direct from Quincy to Kirksville or Adair county it would come under the ban of the “Reed Amendment” as' it would be a shipment of liquor in interstate commerce. We mention this fact, not for the purpose of going into the question of whether relator’s shipment of the liquor from Quincy to Kansas City and then from Kansas City back to Adair county is a “palpable evasion” or any evasion whatever of the Federal law, but merely to show within what narrow limits the right to have intoxicating liquor accepted, transported and delivered in local option territory, is confined. The fact that such right is confined to such narrow compass as is prescribed in the above cited statutes, is a circumstance to be borne in mind in considering whether the petition stated a clear and undoubted right to the mandamus sought and whether the court erred in sustaining the demurrer. A peremptory writ of mandamus is not a writ of right, but rests in the exercise of sound judicial discre
Now, the petition for the writ seeks to compel the acceptance and transportation of all beer offered by relator for transportation, while the alternative writ directs the receipt of all beer offered at Kansas City where relator has a written order received at Kansas City signed by the consignee for his own or family use and shipped direct to him. The rule in this State is that “the relief asked in the petition is the only relief that can be granted on a final hearing.” [State ex rel. v. Davis, 54 Mo. App. 447, 450.] Neither the petition nor the prayer thereof nor the
We think the demurrer was properly sustained and, therefore, affirm the judgment.