State ex rel. Renner v. Noel

• Citation: 140 S.W.2d 57,346 Mo. 286
• Decision Date: 07 May 1940
• Docket Number: 36885
• Parties: State of Missouri at the relation of Louis M. Renner v. C. Roy Noel, Supervisor of Liquor Control, Successor in office to Walker Pierce, Appellant
• Court: United States State Supreme Court of Missouri

140 S.W.2d 57

346 Mo. 286

State of Missouri at the relation of Louis M. Renner v. C. Roy Noel, Supervisor of Liquor Control, Successor in office to Walker Pierce, Appellant

No. 36885

Supreme Court of Missouri

May 7, 1940

Appeal from Cole Circuit Court; Hon. N. G. Sevier, Judge.

Reversed.

Roy McKittrick, Attorney General, and J. E. Taylor and J. F. Allebach, Assistant Attorneys General, for appellant.

(1) The power to issue state licenses to sell intoxicating liquor is exclusively vested in the respondent as Supervisor of Liquor Control of the State. Secs. 12, 13a, 19, 20, Laws 1933-34 Ex. Sess. pp. 81, 82, 83; Secs. 21, 27, Laws 1937, pp. 529 533. (2) In passing on an application to sell intoxicating liquor, the Supervisor of Liquor Control acts judicially and his decision as to whether or not a license shall be issued cannot be controlled by mandamus. Neither will the courts attempt, by mandamus, to direct the Supervisor to change his decision after he has once acted on an application for a license and has refused to issue the same. Sec. 27, Laws 1937, p. 533; State ex rel. Dolman v. Dickey, 219 S.W. 363, 280 Mo. 548; State ex rel. Heller v Thornhill, 174 Mo.App. 481, 160 S.W. 558; State ex rel. Verble v. Haupt, 181 Mo.App. 29, 163 S.W. 532; State ex rel. Gumperts v. Higgins, 84 Mo.App. 536; Cooper v. Hunt, 103 Mo.App. 16, 77 S.W. 483; State ex rel. Brown v. Stiff, 78 S.W. 675, 104 Mo.App. 689; State ex rel. Schade v. Russell, 131 Mo.App. 649, 110 S.W. 667; State ex rel. Hawkins v. Harris, 239 S.W. 565; State ex rel. Springfield Traction Co. v. Broaddus, 207 Mo. 121, 105 S.W. 629; State ex rel. Tate v. Sevier, 68 S.W.2d 54, 334 Mo. 771. (3) Even if the Supervisor of Liquor Control should find that an applicant for a retail liquor dealer's license is fully qualified under the law for such license, he cannot be required, by mandamus, to issue the same because the statute states only that he "may" issue a license under such circumstances. Sec. 13a, Laws 1933-34, Ex Sess., p. 82; State ex rel. Kyger v. Justice of Holt County Court, 39 Mo. 521; State ex rel. Hawkins v. Harris, 239 S.W. 565. (4) The evidence shows that the appellant, as Supervisor of Liquor Control, did not arbitrarily, capriciously, wilfully and without cause of excuse decline to issue a license to respondent. Furthermore, the appellant should have been permitted to testify as to the nature of the information he had in his possession and on which he based his conclusions in refusing to issue said license. State ex rel. Hendricks v. Newton, 206 S.W. 393; Sec. 27, Laws 1937, p. 533.

James T. Blair, Jr., for respondent.

OPINION

Ellison, J.

The respondent, Louis M. Renner, relator below, made application to appellant Walker Pierce, then Supervisor of Liquor Control (his successor in office, C. Roy Noel, has since been substituted as appellant) under Laws Mo. 1933-1934 (Ex. Sess., p. 77, Mo. Stat. Ann., p. 4689), for a license as a dealer at retail in intoxicating liquor by the drink at Kansas City, Missouri. The appellant refused to issue the license on the ground that the respondent was not a law-abiding citizen and a man of good moral character. Thereupon respondent instituted a mandamus proceeding in the circuit court of Cole County to compel the issuance of the license, alleging that he was in all things qualified to receive it and that appellant had arbitrarily, capriciously, wilfully and without cause or excuse refused to issue the same. Appellant filed return pleading in detail facts which in his judgment justified the refusal of the license. After a trial on the merits the circuit court made its alternative writ peremptory. This appeal is submitted on appellant's brief, respondent having filed none.

Appellant's contentions are: (1) that the Supervisor of Liquor Control under Secs. 12, 13a, 19 and 20, Laws Mo. 1933-1934, pp. 81-83, Mo. Stat. Ann., p. 4689, and Sec. 27, Laws Mo. 1937, p. 533, is invested with the exclusive power to issue such licenses; (2) that in passing on applications for liquor licenses the Supervisor exercises a judicial discretion which cannot be controlled by mandamus; (3) that the evidence showed appellant did not act arbitrarily or capriciously in refusing to issue the license, and the trial court wrongfully excluded competent evidence so showing.

The cited sections of the 1934 Act contained the following provisions, which are summarized in part and quoted in part, all italics being ours. Also, hereafter we call the Supervisor of Liquor Control "the Supervisor." Sec. 12: "The Supervisor shall have authority to issue licenses mentioned in this Act." Sec. 13a: Any person who meets all the requirements of the Act and the ordinances, etc., of the city where he proposes to operate "may apply for and the Supervisor may issue a license to sell intoxicating liquor," etc. Sec. 19: "Application for license to . . . sell intoxicating liquor, under the provisions of this act, shall be made to the Supervisor." Sec. 20: "On approval of the application and payment of the license tax herein provided, the Supervisor shall grant applicant a license to conduct business in the state for one year from date of the license."

Sec. 27 of the 1937 Act provides: "No person shall be granted a license hereunder unless such person is of good moral character . . ." This section contains further prohibitions, among which are that no license or permit shall be issued to any person whose license as a dealer has been revoked, or who has been convicted of a violation of the provisions of any liquor law since the ratification of the 21st Amendment to the United States Constitution, or who employs in his business as such dealer any person whose license has been revoked for like reason. Sec. 25 of the 1934 Act further allows incorporated cities to "make and inforce ordinances for the regulation and control of the sale of all intoxicating liquor within their limits," not inconsistent with the provisions of the Act.

From the foregoing it will be seen the 1934 Act vests in the Supervisor exclusive power to issue licenses for the retail sale of intoxicating liquor, which was formerly lodged in the county courts of the several counties and the Excise Commissioner of the City of St. Louis. In discharging that function he exercises a judicial discretion which cannot be controlled by mandamus, at least unless he finds in favor of the applicant every fact necessary to entitle the latter to a license, thereby exhausting his discretion and leaving only the ministerial duty of issuing the license. The decision of the Supervisor on the merits is final, and the statute does not allow an appeal or writ of error. This is held in several cases: State ex rel. Heller v. Thornhill, 174 Mo.App. 469, 160 S.W. 558; State ex rel. Verble v. Haupt, 181 Mo.App. 18, 29, 163 S.W. 532, 534(2); State ex rel. Hawkins v. Harris (Mo. App.), 239 S.W. 564, 565 (1); State ex rel. Dolman v. Dickey, 280 Mo. 536, 548-9, 219 S.W. 363, 366(1).

The Thornhill case, first cited above, deals with a statute (Sec 7191, R. S. 1909) which made it mandatory on the county court to grant a saloon license if (among other things) the applicant had obtained the signatures on his petition of a two-thirds majority of the qualified signers in the block, and yet it was held the determination of the court that the petition lacked that number of signatures could not be reviewed by mandamus. The present statute is not that broad. Sec. 13a of the 1934 Act merely says that where the applicant has met all the requirements of the Act, applicable city...