State ex rel. Kyger v. Justices of Holt County Court

Fagg, Judge, delivered the opinion of the court. This is a petition asking for a mandamus to compel the justices of the County Court of Holt county to issue to the relator a licence to keep a dram-shop. It is shown by the petition that, at the August term, 1866, - of said court, and upon his application made in conformity with the requirement in all respects of the statute in such cases, a licence was granted to the said Nimrod J. Kyger to keep a dram-shop at the city of Oregon in said county, for the period of six months thereafter; that his application for a renewal of said licence for another period of six months was again presented at the February term, 1867, of the said court, and that the same was refused. To this petition a demurrer is filed, which presents but one question for the consideration of this court. The relator being admitted to be a person of good character within the meaning of section 4, chapter 98 of General Statutes of Missouri, 1865, can the County Court of Holt county lawfully refuse to issue a dram-shop, licence to him after a full compliance upon his part with all the conditions and requirements imposed by the statute ? This section, after stating how the application shall be made, and what statements it shall contain, concludes as follows: “And if the court shall be of opinion that the applicant is a person of good [524] character, the court may grant a license for six months.” It is very earnestly insisted upon the part of the counsel for the petitioner that the words “may grant,” as here used, are not permissive merely, but they ought to be judicially construed to be imperative. In other words, that whenever it could be shown that the applicant has complied with all the requirements of the statute, the County Court has no discretionary power in the premises, and the licence must be granted as a matter of right. Quite a list of authorities, touching the proper construction of the word “ may ” as used in statuary enactments, has been presented in the petitioner’s brief, all of which have been carefully examined. These authorities are uniformly to the effect that the word is only to bo construed as mandatory for the purpose of sustaining or enforcing a right, but never to create one. It cannot be said in this case that the petitioner has a legal right which he is seeking to enforce by this proceeding. The case of Austin v. The State, 10 Mo. 591, is, we think, directly in point here. It was there held, that, “ whenever the Legislature prohibits any calling or profession, it ceases to be a lawful pursuit ”; and when the Legislature do not prohibit it, but allow it to be exercised by certain persons, having certain qualifications specified in the law, it then becomes a “ municipal privilege.” In cannot be said with propriety, as we think, that it is the policy of our laws to regard the business of dram-selling in any other light than as a mere privilege, granted under restrictions and conditions that clearly imply a tendency to effect injuriously the public morals, and therefore not to be encouraged either by the laws themselves or the courts of the country. The business, then, which the retailer seeks to engage inis not a matter of personal right, nor one that the interests of the public at large demands that he should be permitted to carry on. It is contended further that a construction of this statute which places the whole matter within the discretionary power of the County Court, would confer upon that tribunal an authority which might be exercised so as to lessen materially [525] the revenue of the State. Of course this is based upon the idea that this act in relation to dram-shops is intended as a revenue measure rather than one to restrain and control, as far as possible, by legal restrictions, an evil which it was not considered wise or expedient to attempt to prohibit altogether. It is not necessarily to be treated by the Legislature as a legitimate source of revenue to the State, but only becomes so incidentally; and the County Court being, as we think, fully invested with discretionary powers in cases of this sort, may exercise the same, subject to the limitations and restrictions absolutely imposed by statute. The other judges concurring, the demurrer is sustained, and the peremptory madamus refused.