*1 309 1924. Vol. ex rel. v. Harris. Hawkins W. P. v. J. THE STATE HAWKINS JAMES Judges County Dunklin et Court of HARRIS al., County. One, 10, 1924.

Division June Discretionary: 1. LICENSE: Pool Billiard Hall. The statute (Sec. 9644, 1919) declaring R. S. that “the court shall have tables, to license the . . . and all billiard kept gaming, other tables and used for which balls and cues impose mandatory obligation upon does a used” court aplícense private possesses person, to issue to a who all the other complied prescribed qualifications and with all conditions has statute, city by pool keep to a and billiard hall within of the class, discretionary, but is fourth such cannot by mandamus. trolled Right: May Equivalent —--: -: or 2. -: Personal Use recognized keeping Words. The of a hall is billiard right, private occupation, nor but one in which no as a useful by except upon grant privilege engage or license can by it; legislative agency authorized act to appear legislative act there words in such and whenever license,” “may license,” power to or shall have as “the court engage wishes in which the virtue and the business occupation, or one he a useful cannot is not of such license State, except by permission lawfully such words conduct “must,” vesting or but as as “shall” construed cannot granting withholding such license. the discretion Pool Hall: Relative Power -: Billiard and 3. authority By keép license Court. the statutes primarily court; is hall vested billiard and license, the fourth class is potential, in actual effect until been first county court, and it within sound discretion privilege, grant or and that discre- withhold of that court by any superintending or revised be controlled tion writ of mandamus. Cyc. 622, 188; Licenses, Mandamus, Cyc. 26 25 623. 1: Headnote Mandamus, Cyc. Licenses, 26 622. Headnote 3: 2:

Headnote Cyc. 601, 188; Licenses, Cyc. Mandamus. SUPREME COURT OP MISSOURI,

State ex rel. Hawkins v. Harris. Springfield Appeals. Transferred from Wkit dismissed.

McKay & for Jones relator. county application

The refusal rela- court’s of by clearly tor, under the facts as disclosed is record, arbitrary authority an unreasonable and of exercise' upon any justifiable and one which cannot rest reason disclosing excuse; record the court’s action re- application fusing attempt by of relator is an prohibit pool court to city and billiard hall in the which the Kennett, court cannot do. ex State rel. v. 211 County Johnson, 682; S. W. State ex rel. v. App. Court, Mo. 193 rel. 373; State ex v. S. Newton, 206 392.W. Bradley respondents; A. for

James Zimmer- Orville objectors. man for

(1) given A broader discretion tri- boards occupations, licensing bunals in the matter vicious occupations their tendencies, than in useful in their char- City acter. State DeWitt, 304; rel. v. 160 Mo. lodges Tarkio v. 1. Cook, 120 Mo. The in the law discretionary court licenses to refuse opinion, grounds in their when, there are reasonable apprehend place carrying suited for on (2) business. Tarkio 120 Cook, v. Mo. 1. Relief by mandamus, to control review an act discretion, palpably arbitrary had unless there very exercise of the discretion of the law face and the conceded facts. Clark State West, Mo. ex rel. 304; Fackenhamer, S. W. 100'.

LINDSAY, C. This cause has been transferred Springfield Appeals. this court brought Court of was It original proceeding in that court man- applied County damus. The relator Dunk- Vol. Harris. ex rel. Hawkins v. operate tables pool and billiard

lin a license to hearing had thereon was Kennett. A denied; testimony license was taken; was which much respondents compel proceeding instituted to was and this The license. judges to issue the said testimony transcribed, court was taken proceeding in permission given copy file forth petition set writ for the Relator’s court. accompanied by proceedings fully com- had, testimony transcript plete taken, and of the thereof, agreement thereon, this cause parties. submitted Appeals [239 denied writ. The Court of 564.]W. applied appears the relator

It the record that keep at either and billiard tables license to his found one of locations. three several *3 good person good character bore a that he reputation and was a of of in the but found that each Kennett, of public proposed or a so either the locations was close to private being said then maintained in school, both, city, operation pool billiard that the hall at either of and proposed opera- locations would interfere with the that of On schools, tion said constitute a nuisance. and ground finding with set forth license was denied. The particularity of the schools, the of several and locations pool proposed places, operating billiard the for the and respective from the distances each the tables, of proposed others. All of the locations were on the south square. side of the A the school branch of was building public square, maintained in the little west of proposed lo- and about 450 feet distant from the nearest private and a feet cation, school was about 325 distant proposed from the nearest location: judges Appeals All of concurred the county that courts the exercise of dis- cretion refuse halls, cause, proximity example, close to a church or a school; that might keep license to and billiard tables be refused, good the either because was not a 312 SUPREME OF MISSOURI, COURT rel. Hawkins v. Harris. place proposed unsuited or because character, They proximity fur other institutions. reason of its try those ther the view concurred solely that questions in the vested having based evidence and heard not lie to will thereon, mandamus its conclusions grant compel finding, aside or correct set merely relief ing court in because the license, might evidence is asked support finding or that the was insufficient to evidence had made erroneous deductions they before also view it; concurred guilty record, evidence in the court was arbitrary action in the discretion, an abuse of developed hearing be instant case. The facts as sufficiently opinions fore the court are stated repeated (239 564) here. The filed S. and need W. Appeals dealing cases in of this State, the Courts subject, powers with the courts under Sec (Revised 1919), availability tion 9644 and the Statutes remedy of mandamus where license refused, App. State ex rel. Witt, 304; McClanahan v. De 160 Mo. County, State ex rel. Court of Clinton Mo. State ex rel. 373; Newton, 392; S. W. rel. v. Johnson, and also the 682, W. case City of Tarkio v. Cook, 120 Mo. 1, are discussed in opinions. majority concurring rule deduced exercising from these was that decisions courts in powers granted by arbitrarily Section 9644 *4 prohibit may pool may refuse a halls—but license-— upon exercise a discretion based consideration of evi touching applicant, dence the character of con proposed upon ditions of may and location, re that, fuse refusing to issue a license, and not be coerced by mandamus. majority

The Appeals, of the Court of while petition upon of relator was deniable the. ground respondents that had taken a' evidence, made finding discretionary thereon, and had abused its TERM, 1924. Yol. ex rel. Harris. Hawkins v. con-

power we conclusion in case,' instant respondents action of cur, farther, went and sustained exclusive upon ground “the courts have that 1919, right, acting Statutes Revised 9644, Section without room licenses, or refuse billiard they anything that other than basing their conclusion on community is such an institution determine de- holding being in conflict with a nuisance.” That Appeals in State Court of the Kansas cisions County, 373, 193 Mo. Clinton the cause 682, 211 W. Johnson, and State ex rel. v. S. certified this court. necessary construction determine what to-

It becomes 1919. As is to Revised Statutes 9644, be Section provides: power given, “The that section billiard license the court shall have Jenny pigeonhole other and all tables, Lind tables, tables, kept gaming, which balls and used tables ’’ provided every By cues it is are used. Section 9650 any permit kept keep or or used who shall having a one or mentioned without more the tables fifty pay shall forfeit than therefor, less nor more than four hundred dollars to recovered govern- The indictment or information. ing various sections Chapter subject Revised 87, now found in Statutes have been in in this State without ma- 1919, force (R. change nearly century p. 96) terial 1835, provisions period the tedating an- substantial were in force [1 1804- statehood. Missouri Laws, Territorial p.' 699.] occupation keeper The tables, of billiard and ex- one which has never been exercised, tc be cept granted by a license therefor be court. always the license has been vested laying and without down ditions under or in which, accordance which, provisions fixing shall be exercised, other than the provision paid the amount table, to be each forbidding county levy- courts and authorities from *5 SUPREME COURT OP MISSOURI,

State ex rel. Hawkins v. Harris. ing greater on amount than allowed table purposes. state ,9651 are

Under such Section tables years prohibited twenty-one allowing persons from parent, age play thereon without the consent guardian v. master or minor. of Tarkio “Keepers billiard occupa 120 Mo. l. Cook, c. it said: 10, was recognized exercising tables are a useful They regulation subject police tion. are under, powers granted cities the State. them They prohibited allowing play minors to Villages may prohibit altogether. their tables. Pub them regarded by many lic billiard halls are in their as vicious leading gambling tendencies, other idleness, vices.” App.,

In State ex rel. MeClanahan v. DeWitt, 160Mo. page “Keepers it is at said, 308: of billiard and occupations,” tables are not useful and what was said subject quoted express Tarkio Cook, approval. legislative policy

Somewhat more of the of the State concerning may and billiard tables observed charters of cities various vil- classes. Towns and lages may regulate prohibit” “license, tax, them. may [Sec. R. 1919.] Cities of the fourth class regulate suppress.” “license, [Sec. tax, or 8497.] Cities may regulate sup- thfe third class “license, tax, press.” [Sec. 8322.] may Cities second “li- class ” suppress. cense, tax or [Sec. 7976.] Cities regulate.” the first class “license, [Sec. tax and special 7674.] Cities under charters tax “license, regulate.” [Secs. 8701, 8713,9654.] regulate The distinction between prohibit pointed out in State reí. McCammon, 111 Mo. 626. It was there said: “The former templates subject-matter the continuance of the exis- activity; implies tence the latter destruc- entire tion or primary cessation.” It is clear that the keep pool or billiard tables, is the license to be obtained Yol. rel. Hawkins v. Harris. *6 li- given city to county to a court. The

from the potential, regulate pool tables is and billiard to cense, and except, license a until, in is not actual effect but it holding county granted by the court. Cases first been regulate, power city, to license that the bearing question is- prohibit, upon at or no the have little of given power court is the here. The sue to power taxing regulatory regulatory a character. subject, play only after there is a of into the comes granted by court. the has been a license is, authorizing provisions of charters On this the account enlarge way any to license and do cities upon powers given sub- this courts or limit to the reg- power ject; the to nor decisions do the prohibit, the settle the include to ulate, does power given question, the to since, said, as has accompanied a to is not license, regulations, prescribe in which the manner as to nothing in the be There is the business shall conducted. language mandatory, terms qualifi- nothing prescribing the There is Section 9644. place applicant, cations nor the character of the kept. provision for to be No made where the tables are peti- petition by anything, setting him forth nor prerequisite, tioners nor for a whom he must secure anyone opposed granting li- remonstrance taking provision nor evidence cense, for the construing language in Section court. used comparison with the of that section 9644, statute former- ly providing dramshops, in force for license pertinent. ruling latter, with the of this court chap. (G. 98) Under the there statute requirements application, were certain made as to the the statements therein to and shown. After be made, provision which, there was a if follows: the court “And shall be good that the is a moral the court character, question months.” The

six of the force to be language up proceeding this came the mandamus Kyger State ex rel. of Holt Court, Justices SUPBEME COUBT OF MISSOUBI,

State ex rel. Hawkins v. Harris. Mo. 521. In that case the contention of the relator that, complied requirements, since he filled the and had prescribed by with all of the conditions statute, discretionary premises, 'court had no right. It and the license must be matter as a Legis was held that since the was one which business prohibited, lature had not but allowed to exercised persons, having qualifications specified by certain law, “municipal privilege.” it then became a at It was said, page 524: “The seeks business, then, the retailer engage personal right, in is not a matter one nor large interests at he demands that ’’ carry on. should It was held that *7 fully discretionary powers, court was vested with and,might “subject exercise the same, to the limitations absolutely imposed by and restrictions statute.” This ruling upon meaning the force and “the words, may grant court was In license,” followed thereafter. page dramshop Laws 1883, 1883, 86, the act amended mandatory upon so as it to make the is court to applicant, compliance sue license where the in addition to statutory requirements, petition all the other had a containing proper “the names subscribed thereto of two- taxpaying thirds the guardians assessed citizens ’’ owning minors real [Secs. estate therein. R. 7191, . ] S. 1909 Kvger’s

The decision in ground Case rested the occupation that since the of the relator was one which he might only by granted follow privilege, virtue of a public was not one which interest demanded he be should permitted power to follow, the court permissive was.exclusive, and was and discretion- ary, and that its in way by exercise an grant- affirmative ing imperative was not the license al- court, though the requirements prescribed filled all the by the statute.

Under the in of Tarkio v. Cook that “keepers of recognized billiard tables are not as exercis- ing occupation,” a useful occupation it follows that the Yol, TEEM, APEIL ex rel. Hawkins V. Harris. ex- be interest shall demands as the

not such a one right, personal demand, aas or that a ercised, upon a case arose to exercise. That be that he city class, fourth the ordinance of violation during limiting billiard halls should the hours opinion clear kept open. that in the intimation regulate, city, not fix could hours its under prohibitory. closing what But, in effect -whichwere light fact be considered must there said persons already those who had ordinance affected court. Possessed license under in case was authorized that, the defendant occupation, city, un- his to exercise law of the State impose might reg’ulations der- power as be such were but which must granted. prohibitory effect, nor destructive 9644 are: “The The words used Section license.” The words shall have used court dramshop court are: shall statute “If law-abiding applicant is a assessed tax years twenty-one age, paying, citizen above ’’ lodges may grant months. Each form for six way more but the is'in no one potent mandatory Kyger’s than the Case, other. construe, touching discussing the authorities “may” dramshop law, tion of word used ‘‘ uniformly said, l. 524: These ef *8 c. authorities only mandatory fect construed that the word is to be as purpose enforcing sustaining right, or but to one. It in never create said this case petitioner legal right seeking has a which he en to proceeding.” force this discussing v. St. this Louis, Mo., statutory

subject page this construction, at said, “ ’ ‘may 510: That the word statute is sometimes con undisputed. ‘may’ strued to ‘shall’ is mean But does always mean ‘shall’ even when in a used statute confer ring power public on a officer. The if true rule is this: gather from the whole context we the statute SUPREME COURT OP MISSOURI, rel. Hawkins Harris. designed impose duty on to to the act the officer aas obligation performed, authority to then the do it is an public de it. when the welfare do It has been said that private rights power to it or are then mands affected private duty act is a to act. But the interests, protection of which the will be to be construed independent grant duty, must exist be such as power.” principle, expressed in New- The same burgh. Turnpike l. c. Miller, Chan. Johns. quoted: respect “And in construc statutes, rule of be, tion seems to or that the word must shall means only public rights con cases where interests and are public persons cerned, and where the or third have claim d.e'jure, shall in be exercised.” As the legislative policjr stant case stands, under the of the State, occupation sought engage relator which ta except by one privilege he could exercise aof license from the State. Under the this and appellate recog some other courts of it is the State occupation. occupation nized as a useful It is not an welfare demands that he shall be private right to exercise. His exercising interest or it independent is not such as “exists power,” independent him issue a license, or, conferred the license itself, but is created to be thereby.' Recurring provisions charters con- powers ferring subject upon this now force, it was may “prohibit,” seen villages that towns and cities of fourth, third and second classes “license, tax, regulate suppress.” is in the alternative, regulate suppress. or to varying Somewhat definitions ” “suppress of word in the law and other “Suppress: dictionaries. put Thus, Bouvier: stop To actually existing.” when prevent; Anderson: “To never, put therefore, license or sanction.” Standard: “To put down or over-power; end to force; crush, Century: subdue.” overpower; put “To subdue; down; ” quell; stamp crush; necessary out. It is not in this case *9 1924. Yol. Railroad Co. Louis & Hannibal v. St.

Jackman precision powers thus to define to undertake municipalities. reference classes ferred these policy legislative indicative of the to a matter is made as holdings prior that, In view of and of the State. granting of reached that the the conclusion is this privilege, conferring a license is such right; granting discretion it within the sound of a is privilege, to withhold confer or or controlled revised that this discretion cannot be and superintending mandamus, control writ concurs. G., herein. Small, and the writ should be denied foregoing opinion PER CURIAM: The Lindsay, the-opinion hereby adopted court. All of C., is as judges concur. MARY & JACKMAN v. ST. HANNIBAL LOUIS Appellant,

RAILROAD and LOUIS COMPANY, ST. & COMPANY. HANNIBAL RAILWAY Two,

Division June 1924. Passed, Things By 1. RAILWAY MORTGAGE: Foreclosure. railways, rails, tracks, mortgage foreclosure of a on “the side fences, buildings, rights-of-way, tenements, fixtures, depots, append- ages appurtenances acquired” by and owned or hereafter to estate, right, interest, company, “and all the and railroad title demand, equity property, claim and as well at law as . . . thereof,” every things part parcel to the same and appurtenances” things “appendages as and of the other be classed “property” pass, cannot be construed did not and word things property included kind of enum- to include erated. Appurtenances: Money: Appendages -: -: U. S. Appurtenance appendage, belongs to Bonds. or that which is an else, mortgage only something as used in a railroad indispensable passed “appurtenances” property is company, property enjoyment of franchises of the use and may prove company acquired simply because it useful discharge of its business not included the mort- facilitate ‘.'appendages appurtenances.” gage by of the' words uáe