Cooper v. Hunt

• Decision Date: 01 December 1903
• Citation: 77 S.W. 483,103 Mo.App. 9
• Parties: COOPER, Appellant, v. HUNT et al., Respondents
• Court: Missouri Court of Appeals

77 S.W. 483

103 Mo.App. 9

COOPER, Appellant, v. HUNT et al., Respondents

Court of Appeals of Missouri, St. Louis

December 1, 1903

Appeal from St. Louis City Circuit Court.--Hon. D. G. Taylor, Judge.

AFFIRMED.

Judgment affirmed.

Myron Westover for appellant.

(1) The keeping of a dramshop is not a right but a privilege to be granted only under the strict provisions of the statute. Austin v. State, 10 Mo. 591; State v. Holt Co. Ct., 39 Mo. 521. (2) There is no authority vested with jurisdiction to issue license until a majority of the qualified persons sign petition. R. S. 1899, sec. 2997. (3) The excise commissioner must investigate qualifications of signers. He has no power unless they are qualified. R. S 1899, sec. 2997; Snoddy v. County, 45 Mo. 361; Railway v. Young, 96 Mo. 39. (4) Petition for license must remain on file, open to public inspection for ten days, otherwise license is void. R. S. 1899, sec. 2997 amended Laws 1901, p. 142; State ex rel. v. Seibert, 71 S.W. 95. (5) Signers may withdraw their signatures. R. S 1899, sec. 2997. (6) A void license may be questioned collaterally as a void judgment may, to determine whether the court or commissioner had jurisdiction. Cloud v. Inhabitants, 86 Mo. 357; Crow v. Myersick, 88 Mo. 415; Adams v. Cowles, 95 Mo. 507; Presbyterian Church v. McElhinney, 61 Mo. 543; Railway v. Reynolds, 89 Mo. 147; Hutchinson v. Shelly, 133 Mo. 412-13; Williams v. Monroe, 125 Mo. 584-588; Blodgett v. Shaffer, 94 Mo. 652; Mullins v. Rieger, 169 Mo. 532; Rosenberg v. Gibson, 165 Mo. 16; Board v. Drummond, 167 Mo. 60. (7) An unauthorized dramshop is a nuisance, per se, and defendant Hunt, though acting under color of a license, may be enjoined in equity. State v. Uhrig, 14 Mo.App. 413; High on Injunction, sec. 748; Hayden v. Tucker, 37 Mo. 224; State ex rel. v. Zachritz, 166 Mo. 307; Bank v. Kercheval, 65 Mo. 688; Railway v. Railway, 69 Mo. 71; Coal Companies v. City, 130 Mo. 323; Railway v. Springfield, 85 Mo. 674; Haggard v. Stehlin, 137 Ind. 43; Crawford v. Tyrrell, 128 N.Y. 421. (8) Equity will enjoin the collection of a judgment procured by fraud. Hamilton v. McLean, 169 Mo. 71, distinguishing; Wonderly v. Lafayette Co., 150 Mo. 635; Meyers v. Miller, 55 Mo.App. 338.

Kehr & Tittmann and Marion C. Early for respondents.

(1) The petition signed and filed by Hunt on November 15, 1902, and signed by a large number of petitioners in his behalf, was a part of the record. It contained the recital that the petitioners were a majority of the assessed taxpaying citizens and guardians of minors owning property in block 1038, etc. Hence, that petition conferred jurisdiction upon the excise commissioner to act. State ex rel. v. Moniteau County Court, 45 Mo.App. 388; State ex rel. v. Higgins, 71 Mo.App. 184. (2) The ten days during which the petition must remain on file open to public inspection, began to run on November 15, 1902. After the expiration of ten days from that date, the excise commissioner had power to grant the license. He granted it on December 8, 1902, which was more than ten days after the filing of the petition. (3) The petition alleges and it is the law, that in the city of St. Louis, the excise commissioner is vested with sole authority and jurisdiction to grant dramshop licenses and in issuing such dramshop licenses, he acts "judicially and not ministerially" in obedience to his opinion and judgment. State ex rel. v. Heege, 37 Mo.App. 338; State v. Evans, 83 Mo. 322; Railway v. Whalen, 3 Wash. 452; Leigh v. Westervelt, 2 Duer 618. (4) And it is for him to say whether the applicant is a person of good moral character and whether or not the preliminary petition required by law has been signed by a majority of the assessed taxpaying citizens, etc. So "whether the petitioners were in fact assessed taxpaying citizens such as is required by law, or whether they were a majority or whether some names on the petition were forged, were questions of fact for the county court" and which the circuit court has no right to pass upon. State v. County Court, 45 Mo.App. 391; State v. Evans, 83 Mo.App. 322; State v. Cauthorn, 40 Mo.App. 99. (5) A licensed dramshop is not a nuisance per se. That which is authorized by the Legislature can not be a nuisance per se. Williams v. Railroad, 18 Barb. 222; Leigh v. Westervelt, 2 Duer 618. (6) When the apprehended injury is contingent, is not a nuisance per se, but may or may not become so according to circumstances, and when it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere. 1 High on Injunctions, 742, p. 568; McDonough v. Robbens, 60 Mo.App. 156; Holke v. Herman, 87 Mo.App. 125; 10 Am. and Eng. Ency. of Law, p. 836, and cases cited; Pfingst v. Senn, 23 S.W. 358, and large number of analogous cases cited. (7) Equity can not be invoked to restrain a consequential injury necessarily resulting from the lawful exercise of a right granted by the sovereign power of the State or authorized by competent municipal authority. Williams v. Railroad, 18 Barb. 222. (8) If the excise commissioner has exceeded his jurisdiction and the license by him is invalid, the remedy is by certiorari and not by injunction. Leigh v. Westervelt, 2 Duer 618; Railroad v. Whalen, 3 Wash. 452.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

Plaintiff avers that she is the owner of two parcels of ground in city block 1038, in St. Louis, one fronting on the north line of Lucas avenue and the other on the south line of Morgan street. One of plaintiff's parcels adjoins premises known as number 3201 Lucas avenue, owned by the defendant Ella Pechmann. Plaintiff's property in the block is occupied by sixteen dwelling houses rented to tenants. The defendant Charles M. Hunt was granted a license by the excise commissioner of the city of St. Louis December 8, 1902, to conduct a saloon at number 3201 Lucas avenue, which premises are averred to have been leased to him by Ella Pechmann on condition that Hunt secure a valid license to keep a dramshop therein, the lease not to be binding if the license should be revoked or declared invalid. The object of this suit is to have the dramshop license granted to Hunt declared void and cancelled; to restrain him from conducting a saloon on the premises 3201 Lucas avenue, and to restrain Ella Pechmann from renting said premises for use as a saloon. Plaintiff avers that she will suffer special damages from the existence of a saloon in the block, on account of her large property interests therein and the purpose for which her property is rented, to-wit, as residences. The allegations on which relief is prayed against the license are these: Hunt's first petition for license, filed with the excise commissioner November 15, 1902, was not signed by a majority of the assessed taxpaying citizens and guardians of minors owning property in city block 1038, but only by seven persons; after filing said petition, to-wit, November twenty-third, Hunt declared to the plaintiff that he had withdrawn his application for a license on account of the opposition in the neighborhood; a false statement, as Hunt never withdrew his application but, on the contrary, filed another petition December second, purporting to be signed by seven other persons as petitioners; the excise commissioner on the same day (December second), determined that there were twenty-two persons eligible under the law to sign a petition for license to keep a dramshop in the block and that twelve of said eligible persons had signed Hunt's petition; thereupon, on December second, the excise commissioner issued a statement that on the payment of a license tax and the presentation of the proper receipts, he would grant a license to Hunt, and did grant one to him December 8, 1902.

It is further alleged that of the seven names appearing on the petition filed November fifteenth, those of W. O. and Emma E. Thomas were signed to a remonstrance against granting the license, in the same hand-writing as the signatures of those names to the petition, and that the remonstrance was filed with the excise commissioner November 21, 1902; that the name of Mrs. M. Reckinger on the petition of November fifteenth was not the name of any person owning property in city block 1038, and that the names of Sarah L. Rodomsky and M. Reckinger were not signed by any person having authority to sign the petition. The meaning of this averment, as shown by the general tenor of the petition, is not that the names of those parties were forged, but that the parties were ineligible to sign. Moreover, as there were fourteen petitioners in all, there could have been a majority of the twenty-two persons eligible to sign after rejecting said two names. In regard to the signatures of W. O. and E. E. Thomas, the averment is that they first signed Hunt's petition on a representation made by him that he had an appointment with J. Rodomsky, who would sign it on presentation, which statement turned out to be false, and on discovery that it was false the Thomases signed the remonstrance.

The case went to trial, but the court excluded most of the evidence offered by the plaintiff. In addition to proffering proof of the above averments, plaintiff offered to prove that not only were the names of M. Reckinger and Sarah Rodomsky signed to the petition of December second by persons without authority to sign said names, but that the remaining five names signed to it were those of persons who did not own property located in block 1038, had not paid any taxes on property located therein and that the excise commissioner made no effort to ascertain the facts.

The statutes of the State require an application for dramshop license to be supported by the petition of a majority of the assessed,...