Welsford v. Weidlein

The opinion of the court was delivered by Horton, C. J.: This is an original action of mandamus, commenced in this court by Nathaniel B. Welsford, to compel Philip Weidlein, as mayor of the city of Peabody, to sign a license granted by the city council on the 23d day of August, 1879, and issued on the 29th day of November, 1879, by the clerk and treasurer of .Peabody, authorizing said Welsford to [604] carry on a retail dramshop in said city from November 29, 1879, to the 30th day of April, 1880. The defendant refused to sign the license, both before and subsequent to the service of the alternative writ upon him, and in his return states that his reason for so doing is, that the city council had no power to grant the license, as less than a majority of the residents of the city of Peabody of twenty-one years of age and over signed the petition or recommendation for the license; that only 251 names were attached to it, thirty of whom were non-residents of Peabody; and that 280 resident adults of the city did not sign the petition. Upon the trial of the case before us, it was agreed that the petition was presented to the city council on August 23,1879; that prior to January 1,1880, there had never been any ordinance of the city of Peabody providing for a census of the city; that Peabody is embraced within Peabody township; and that when the township trustee, as assessor thereof, made a list of all persons of both sexes twenty-one years of age and upward, he did not on such list separate those residing elsewhere in said township, nor did he indicate on the list whether they resided within or without the city, nor did he make any separate list of or for the city. We have carefully considered all the evidence presented, and are fully satisfied that a majority of the residents of Peabody, of twenty-one years and over, did not sign the petition presented by Welsford to the city council. It purports to contain 251 names, but several of these are wrongfully there. It is conceded by plaintiff that 240 resident adults of the city did not sign his petition, and the testimony introduced by the defendant clearly establishes that others (ten at least) failed to sign. The majority was not obtained to the petition. The question is therefore presented, whether the action of the city council is conclusive as to the sufficiency of the petition? Peabody is a city of the third class, and the corporate authorities have no power to dispense with the petition required by § 1, ch. 35, of the dramshop act, and can only grant license to a person to keep a dramshop when there [605] is properly presented to the city council a petition signed by a majority of the adult residents. Not only does the dram-shop act require a majority petition as a condition precedent to the action of the council, but the ordinance of the city of Peabody, under which the council pretended to act, has the like provision. Without such petition th'e city council had no power or jurisdiction in the premises. Not only is a petition requisite, but it must be signed by a majority of the adult residents. Unless a majority make the request that a license be granted to the applicant, the assent of the corporate authorities cannot be legally given; if improperly given, the license is null and void. The provision concerning the petition is a limitation of the power of the corporate authorities, and does not affect merely the proceedings of the authorities in granting licenses to sell intoxicating liquors, but the jurisdiction of the authorities to. act. In City of Eureka v. Davis, 21 Kas. 578, we held that the list prescribed by ch. 86, Comp. Laws of 1879, was conclusive of the number of adults, owing to the legislative provision to that effect. In this case, the list is absent, or at least was insufficient. Under the statute and the ordinance, it therefore was the duty of the city council to have ascertained, by a census or otherwise, that the requisite number of adult residents had in fact signed the petition, before acting in the matter. As the power to license depended upon the petition of a majority, the want of such a majority makes the action of the council void. In fact, the council seems to have acted very hastily. The record shows that a call was signed by a majority of the council on August 23,1879, for a council meeting that evening; that a meeting was held in pursuance to the call, and on the presentation of the petition of Welsford, a dramshop license was ordered to issue at once. Under the.circumstances, we are of the opinion that the case stands before us as if no license had been granted. Therefore, the defendant very properly refused to sign the paper purporting to authorize the plaintiff to carry on a dramshop. (State v. Young, 17 Kas. 414; Insurance Co. v. State, 9 Kas. 210; City of Eureka v. Davis, 21 Kas. 560; [606] Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kas. 129; Dillon on Mun. Corp., §639; Bouldin v. City of Baltimore, 15 Md. 13.) Judgment will be entered for the defendant for all costs. Valentine, J.: I concur in the result reached by the Chief Justice.