Summary
In State ex rel. Missouri Baptist Hospital v. Nangle, Mo.App., 230 S.W.2d 128, 131, it was held that a city license director, such as the excise commissioner in the City of St. Louis, exercises a judicial discretion in granting or refusing a retail liquor dealer's license.
Summary of this case from State v. JohnsonOpinion
No. 27907.
May 16, 1950. Rehearing Denied June 13, 1950.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 3, JAMES F. NANGLE, J.
William M. Fitch, St. Louis, Malcolm I. Frank, St. Louis, relators.
Morris A. Shenker, St. Louis, for respondents.
Relators seek by writ of certiorari issued out of this court to quash the judgment of the circuit court of the City of St. Louis in a certiorari proceeding in that court instituted by Camilla Robinson, as relator, against Arthur H. Bader, excise commissioner of the City of St. Louis, in connection with the denial by the excise commissioner of an application by Camilla Robinson for a license to sell intoxicating liquors by the drink at an establishment or place of business at 911 N. Taylor Avenue, in the City of St. Louis.
On December 11, 1948, Camilla Robinson filed the application with the excise commissioner and attached thereto was a plat purporting to show the names of the property owners and the location of each owner's property which was within 200 feet of the place such intoxicating liquors were to be sold, as required by the city ordinances. There was also filed with the application what purported to be the written consent of a number of property owners to the issuance of the license.
On February 9, 1949, the Missouri Baptist Hospital and Alese Morris, claiming to be the owners of property within the 200 foot area, filed with the excise commissioner a written protest against the issuance of the license, and attached thereto a plat prepared by the Title Insurance Company of St. Louis purporting to show the property and the owners thereof within the 200 foot area. They denied the accuracy of the plat filed by the applicant, and further charged fraud in that a number of those who signed the consent to the license were not owners in good faith of the property applicant's plat showed them to be owners of, but such properties were conveyed to them without consideration merely for the purpose of making them appear to be qualified to sign such consent. Many other reasons were assigned by these protestants as to why the application should be denied, but such reasons become moot because the only question contended throughout the proceeding has to do with the question of whether the application was supported by the consent signatures of a majority of the owners and taxpaying citizens owning property within 200 feet of the proposed location where the sale of intoxicating liquors would be made.
On March 18, 1949, the excise commissioner made an order of record as follows:
"The above cause having come before the Excise Commissioner on the 18th day of March, 1949, upon a petition for a license to sell intoxicating liquor by the drink at retail at 911 North Taylor Avenue, testimony was submitted, and the Excise Commissioner having heard the evidence and duly considered the same, and being fully advised concerning the matter, hereby declines to approve said petition, pursuant to the authority conferred upon him by Ordinance 40630 of the City of St. Louis * * * That the petition of the applicant was not supported in writing by a majority of the assessed tax-paying citizens owning property within a distance of two hundred (200) feet of the location in which the applicant proposed to conduct a retail liquor business.
"Wherefore, it is ordered that the petition of the applicant for a license to sell intoxicating liquor by the drink at retail at 911 North Taylor Avenue be denied by the Excise Commissioner of the City of Saint Louis."
Thereafter, the applicant, Camilla Robinson, instituted certiorari proceedings in the circuit court; the writ was issued and the record, files and proceedings, including the finding and order of the excise commissioner, were transferred to the circuit court for review thereof.
Thereafter, upon such review, and without evidence other than the record and files in the proceedings before the excise commissioner, the circuit court through and by respondents (here) entered a finding and judgment as follows:
"This cause having heretofore been heard on the 12th day of May, 1949, on the relator's petition for a writ of certiorari and on the respondent's return to the issuance of such writ, and upon the submission of all of the issues to this Court, and the Court having fully considered the same, the Court does herein find that the respondent acted arbitrarily and without justification in denying the relator's application for the issuance of a license to sell intoxicating liquors by the drink at 911 N. Taylor Avenue, in the City of St. Louis, State of Missouri, and that the said respondent erred as a matter of law in determining that the petition of the relator `was not supported in writing by a majority of the assessed tax-paying citizens owning property within a distance of two hundred feet from location in which the applicant proposed to conduct a retail liquor business'. The Court further finds that the record before the Court indicates that a sufficient number of qualified property owners within a distance of two hundred feet from the property in question affixed their signatures and subscribed their consent to the petition of the relator, that these signatures were submitted to the respondent with the petition of the relator, and further that the relator has complied in all respects with the ordinance in such cases made and provided.
"Wherefore, it is ordered, adjudged and decreed that judgment herein should be and is hereby rendered in favor of the relator and against the respondent, and that the respondent Excise Commissioner of the City of St. Louis is hereby commanded and directed to issue forthwith to the relator a license for the sale of intoxicating liquors by the drink at 911 N. Taylor Avenue, in the City of St. Louis, State of Missouri."
The case is now before this court by way of certiorari to review the record and judgment of the circuit court.
It has been said in many cases that the office of certiorari is to bring a record of the proceedings of an inferior court or tribunal before a superior court to determine whether it acted legally, and the object of the writ is to keep inferior courts or tribunals within their jurisdiction. Consequently, it does not serve the purpose of an appeal, and all that can be done under it is to either quash or refuse to quash the record of which complaint is made. State ex rel. St. Louis County v. Evans, 346 Mo. 209, 139 S.W.2d 967. And a person with personal interest in the subject matter of a proceeding may sue out a writ of certiorari for review of such proceedings, and anyone who is a party to such proceedings in either form or substance, so as to be concluded by determination thereof, is an interested person entitled to such writ. Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054. This is expressly recognized as to the issuance of liquor licenses in the following paragraph of St. Louis City Ordinance 40630, Sec. 11, viz.: "Upon such hearing, the applicant shall be entitled to produce testimony under oath, and to be represented by counsel, and the Excise Commissioner shall have the power, on his own motion, to subpoena witnesses, and to take their testimony under oath pertaining to all matters connected with the petition of said applicant, and any assessed, tax paying citizen owning, or any person occupying or conducting any business in any property within 200 feet of the proposed retail liquor store shall have the right to produce witnesses and testimony."
The traffic in liquor is not a lawful business except as authorized by express legislation, and no person has the natural or inherent right to engage therein; such traffic is placed under the ban of the law, and it is, therefore, differentiated from all other occupations and is separate from the natural rights, privileges, and immunities of the citizen. State v. Wipke, 345 Mo. 283, 133 S.W.2d 354. A city license director, such as the excise commissioner in the City of St. Louis, exercises a judicial discretion in granting or refusing a retail liquor dealer's license. Mangieracina v. Haney, Mo.App., 141 S.W.2d 89.
In this case it became the duty of the excise commissioner to hold the hearing and to take testimony under oath "pertaining to all matters connected with the petition of said applicant." This certainly included testimony as to whether or not a sufficient number of property owners within the 200 foot area had consented to the issuance of the license. The mere fact that a certain number of names appeared as consenting, whose names were on a plat submitted by the applicant, and which was charged to be incorrect by the protestants, was not conclusive proof to the excise commissioner of compliance with the law. The excise commissioner would have a right to determine what property was within the 200 foot area, and whether such consenters were in good faith owners of property within the area, or whether property which they did not own had been placed in their names in order to apparently qualify them as signers consenting to the license. As to these questions it is the contemplation of the law that the decision of the excise commissioner be final. State ex rel. Heller v. Thornhill, 174 Mo.App. 469, 160 S.W. 558. The excise commissioner had before him two plats, one prepared by or at the instance of the applicant, the other prepared by the Title Insurance Company of St. Louis at the instance of the protestants (relators here). These plats do not correspond. The signers of consent, if otherwise qualified, were a majority of the owners according to applicant's plat. But according to protestants' plat they were not a majority. It was a question both of law and fact as to the actual number of owners and as to their qualifications to sign the consent. These questions of law and of fact were for the excise commissioner to determine.
A certiorari proceeding is to be tested by the return only. In this proceeding the excise commissioner made no formal return, and in fact the writ was addressed only to the respondent judge, and he made the return thereto. However, while it has served its purpose, the suggestions of Arthur H. Bader, excise commissioner, filed in answer to the petition, and which is a part of the files in this court, may be looked to as being in the nature of a return and showing his position. It is therein stated as follows:
"Respondent Bader further states that he did hold a full and complete hearing in accordance with Ordinance 40630 and did issue his order denying the application of Respondent Camilla Robinson for a full liquor license on the grounds that her petition had not been supported in writing by a majority of the assessed taxpaying citizens owning property within a distance of two hundred feet from the proposed location. More specifically the exhibits before him and offered in evidence before the honorable Circuit Court upon certiorari brought by relators, were found to contain seventeen parcels of land located within the two hundred foot circle from the proposed location. The Commissioner found that the owners of seven of the seventeen parcels signed in support of the application for the tavern and they were the following:
"1. Louis F. Gazzolo
"2. Hyman Polinsky
"3. Albert Fein
"4. Abe Fine and Bertha, his wife, (Note that they signed on separate lines on the petition)
"5. Rebecca Kaye
"6. Morris Potashnik
"7. St. Louis Public Service Company
"Respondent Bader further found at the hearing that the following persons were the owners of the remaining parcels of land and that they either spoke in opposition or did not sign in support, they being the following.
"8. Floyd and Elizabeth English
"9. Clara Niehaus
"10. George Spotts
"11. James E. Locus
"12. Ambrose Pucicelli
"13. Alese Morris and Ollie N. her husband
"14. Josie Calhoun
"15. Catherine Holloway
"16. Missouri Baptist Hospital
"17. Chandler Davis (Note that the signature of this property owner was not obtained, but that Herman Glick, signed as his real estate agent, and a power of attorney was produced signed by one Morris Steinbaum purporting to be the owner of said property)
"Respondent Bader excluded the property and signature of Isadore Fein because he is the owner of the land on which the tavern is proposed to be located. Custom decrees that the consent and support of the petitioner or her landlord is never counted as one of the parcels of land in the two hundred foot area, for the reason that such consent is inherent in the petition for the tavern. The ordinance requires the consent of the majority of the neighboring owners within the two hundred foot circle."
The final order of the excise commissioner was before the circuit court, and that order expressly showed that "testimony was submitted and the Excise Commissioner having heard the evidence and duly considered the same, and being fully advised concerning the matter" declined to approve the petition and gave as a reason, "That the petition of the applicant was not supported in writing by a majority of the assessed taxpaying citizens owning property within a distance of two hundred (200) feet of the location in which the applicant proposed to conduct a retail liquor business." There was no such testimony before the circuit court. The testimony before the excise commissioner, so far as the record shows, was not preserved, and was not certified to the circuit court. The circuit court had before it only the files before the excise commissioner and his final order. And even the respondent's judgment merely says that the record indicates that a sufficient number of property owners had signed the consent.
If the excise commissioner had the mere administrative duty of counting the names of those signing the consent and comparing those names with the disputed plat filed by the applicant, there would be some merit to respondents' contention that even in certiorari the circuit court would pursue the same course, and it would only be a question of law as to whether the license was properly refused. But such is not the law. The excise commissioner must not only count the names but he must determine from the evidence whether such names are those of taxpaying citizens owning property within the prescribed area. This was a question of fact and was determined by the excise commissioner, as his final order shows, on the evidence submitted.
Section 22 of Article V of the Constitution, Mo.R.S.A., providing for review by the court of administrative officers or bodies, has no application. The excise commissioner was not merely an administrative officer; he had a judicial function to perform, State ex rel. Renner v. Noel, 346 Mo. 286, 140 S.W.2d 57; therefore neither the above constitutional provision, nor the "Rules and Regulations: Providing for review of the decisions, rules, and regulations of administrative officers", Laws 1945, p. 1504, Mo.R.S.A. § 1140.101 et seq., have any application. But even if those provisions did apply, there was nothing in the documentary evidence before the circuit court to authorize a finding that the excise commissioner's finding and order was arbitrary or without justification or substantial competent evidence to support it, and certainly it was not contrary to the overwhelming weight of the evidence.
After the circuit court entered its judgment on June 23, 1949, W. M. Fitch and Malcolm Frank, members of the local Bar, entered their appearance on July 1, 1949, as special attorneys for the excise commissioner, the respondent in that proceeding, and filed a motion for a new trial. On September 19, 1949, the relator in that proceeding, Camilla Robinson, filed a motion to strike the motion for new trial from the record. This motion alleged that the attorneys filing the motion for new trial did not represent the relator (excise commissioner), and that the law did not authorize the excise commissioner to employ special attorneys. On September 26, 1949, the respondent excise commissioner moved the court for leave to amend the motion for a new trial by adding to it as his attorneys the city counselor and his assistant. This motion was denied, and on the same day the court sustained the motion to strike and ordered that respondent's motion for new trial be stricken from the files. Thereafter, on October 5, 1949, the respondent excise commissioner moved the court to set aside its order striking his motion for new trial. This motion was stricken from the files by the court on October 7, 1949.
Respondents now take what appears to be an anomalous position, to wit, that relators here had a right to appeal from the court's action in striking their motion for a new trial and in striking their motion to set aside that order. In other words, respondent Robinson's contention when in the circuit court seems to have been that the relators here were not parties to the proceedings, and had no right to move for a new trial, and now in this court contends that they were parties with a right of appeal. The contention is untenable. Mandamus would not have been an adequate remedy to the relators, as it could have gone no further than directing that the motion for new trial be reinstated and ruled upon its merits. This route would have been so circuitous and time-consuming that it would not be an adequate remedy. Certiorari is a proper remedy.
As heretofore stated, the only proper judgment the circuit court had authority to render was to either quash its writ or quash the final order of the excise commissioner. It did not stop there but treated the proceedings more as though it were an appeal, and determined the merits of the controversy, which was beyond its jurisdiction.
Ordered that the proceedings and judgment of the circuit court be quashed.
ANDERSON, P. J., and McCULLEN, J., concur.