The State ex rel. Troll v. Hudson

Supreme Court of Missouri1883-04

78 Mo. 302

Summary · law.co

Holding. The court affirmed the denial of the writ of mandamus, holding that the 1883 dramshop licensing statute is constitutional as a police regulation rather than a tax, applies to the City of St. Louis, and requires the municipal assembly to set the fee amount before any licenses may be issued.

The state possesses constitutional authority under its police power to regulate the sale of intoxicating liquors by requiring licenses. The licensing fee imposed by a dramshop regulation statute enacted in 1883 is not a tax but rather a price charged for permission to engage in an activity that the legislature could prohibit entirely. Such regulatory fees, even when substantial or deposited into public revenue, remain police measures designed to reduce intemperance and related social harms rather than exercises of taxing power.

The court further determined that the 1883 dramshop statute applies to the City of St. Louis, not merely to counties. A general state law using the term "county" includes St. Louis under the Revised Statutes unless doing so would contradict the law's apparent purpose. Because the legislature clearly intended the 1883 act to increase licensing fees statewide, its application to St. Louis is consistent with that purpose and does not conflict with St. Louis's charter, which authorized but did not specify the amount of licensing fees. Consequently, any St. Louis ordinance fixing the fee at a lower amount was superseded.

Under the 1883 statute, the municipal assembly of St. Louis and county courts elsewhere must affirmatively set the licensing fee within statutory limits before any licenses may be issued. Since the record did not show that St. Louis's municipal assembly had taken such action, the collector lacked authority to issue any dramshop license, and the requested writ of mandamus was properly denied.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a dramshop licensing fee is a constitutional tax or a permissible police regulation
Whether a general state law applies to the City of St. Louis
Whether a local ordinance is superseded by conflicting state legislation

Procedural posture

The case was submitted on an agreed statement of facts, with the court considering whether to grant a peremptory writ of mandamus.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Per Curiam.

The State has the right, in the exercise of its police power, to prohibit the sale of intoxicating liquors without a license. Austin v. State, 10 Mo. 591; State v. Lemp 16 Mo. 389; State v. Searcy, 20 Mo. 489. The license fee exacted by the general law regulating dramshops and the act amendatory thereof, approved March 24th, 1883, is not a tax within the meaning of sections 1, 3 and 10 of article 10 of the constitution, but is a price paid for the privilege of doing a thing, the doing of which the legislature has a right to prohibit altogether. Such laws are regarded “ as police regulations, established by the legislature for the prevention of intern perance, pauperism and crime, and for the abatement of nuisances,” and are not regarded as an exercise of the taxing power. “ Pursuits that are pernicious or detrimental to public morals may be prohibited altogether, or licensed for a compensation to the public.” Cooley on Const. Lim., (4 Ed.) p. 727; Burch v. Mayor, etc., 42 Ga. 598; Bohler v. Schneider, 49 Ga. 195; Chilvers v. People, 11 Mich. 43; People v. Thurber, 13 Ill. 554; East St. Louis v. Trustees of Schools, 102 Ill. 489 ; s. c., 40 Am. Rep. 606; and cases cited; Henry v. State, 26 Ark. 523; loc. cit. 525. It does not follow because the license fee is large, or because it may become a part of the public revenue that it is, therefore, a tax. State v. Hipp, 38 Ohio St. 225. Many fines, penalties and forfeitures become a part of the public revenue of the State that are not derived from taxation. The disposition made of the fund derived from the license fees does not necessarily determine the character of such fees. The legislature were evidently of opinion that the taxation of a large license fee would tend to diminish the number of saloons and improve the character of those licensed, and thereby secure to a greater degree compliance with all the regulations and restrictions which the law has thrown about such resorts. "We are of opinion, therefore, that the act of March 24th, 1883, is not unconstitutional.

We are further of the opinion that section 5441, as amended by the act of March 24th, 1883, is applicable to the city of St. Louis. It was said by the court in the case of the State ex rel. Attorney General v. McKee, 69 Mo. 508, decided at the April term, 1879, that a general law with reference to the counties of the State would not apply to the city of St. Louis. But it is provided by section 3126 of the Revised Statutes, which took effect in November, 1879, that “whenever the word ‘ county ’ is used in any law general in its character to the whole State, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city.” We think it was the obvious purpose of the act of March 24th, 1883, to increase the license fee for the sale of intoxicating liquors throughout the State, and it is not, therefore, inconsistent with the evident intent of the act to declare it applicable to the city pf St. Louis. Nor is such construction inconsistent with any law specially applicable to the city of St. Louis. The only law on that subject applicable to the city of St. Louis is its charter, which authorizes it to license, tax, regulate or suppress saloons, beer houses, tippling houses, dramshops, etc., but the charter does not fix the amount of the license fee to be required, and the law in question, which limits the amount thereof, is, therefore, not in conflict with the charter, but is consistent with and supplementary thereto. It follows that the ordinance passed in pursuance of the charter fixing the amount of the license fee at $60 is repealed by the act of 1883, which prescribes a limitation as to the amount to be charged in conflict with said ordinance.

We are further of opinion that under the act of 1883 it is the duty of the municipal assembly of the city of St. Louis, and of the county courts of the several counties in this State to fix the amount of license fee to be charged under said act within the limits prescribed, and until such action is taken by said municipal assembly, and said county courts, no collector has a right to issue a license to any person as a dramshop keeper. As it does not appear from the agreed statement on which this cause has been submitted, that the municipal assembly has ever fixed the amount of license fee to be charged in the city of St. Louis, the collector has no right to issue a license, and the peremptory writ of mandamus will, therefore, be refused.

Judges Norton and Sherwood did not sit, being absent.