Smith v. Berryman

• Decision Date: 01 December 1917
• Citation: Smith v. Berryman, 272 Mo. 365, 199 S.W. 165 (Mo. 1917)
• Parties: WILLIAM A. SMITH v. JOHN W. BERRYMAN et al., Appellants
• Court: Missouri Supreme Court

199 S.W. 165

272 Mo. 365

WILLIAM A. SMITH v. JOHN W. BERRYMAN et al., Appellants

Supreme Court of Missouri

December 1, 1917

Appeal from Iron Circuit Court.-- Hon. E. M. Dearing, Judge.

Reversed.

David W. Hill for appellants.

(1)The plaintiff brought this mandamus suit, the defendants made due return to the alternative writ, the facts were agreed upon in writing by both parties in the mandamus case and the relator filed his motion for a peremptory writ, which motion was in affect a demurrer.The motion was sustained and the mandamus case, therefore, was disposed of upon a demurrer, and there is no foundation for this action as upon a false return, and defendants' demurrer to the evidence should have been sustained.State ex rel. v. Ryan,2 Mo.App. 303;Secs. 2550, 2551, R. S. 1909;Achey v. Creech,21 Wash. 319.(2)Plaintiff having had the right to plead and recover damages in his mandamus proceeding, cannot, after having prosecuted to a final judgment his action, for mandamus, institute this, a second action and recover damages.Achey v. Creech,21 Wash. 319.(3) Under no circumstances could plaintiff recover counsel fees or other trial expenses, because the plaintiff, if entitled to recover any damages, is limited by the statute to those recoverable in an action as for a false return.People v. Railroad, 102 N.Y.S. 385.

N. A Mozley and Ernest A Green for respondent.

(1)Appellants had only a ministerial duty to perform in granting respondent's application for a dramshop license.The only authority and power which appellants, as members of the city counsel of Poplar Bluff, had with reference to the granting of dramshop license was "to levy and collect a license tax on liquor sellers."When the license tax was paid by respondent, he was entitled to the grant of a license and it was the ministerial duty of appellants to grant same.Sec 9253, R. S. 1909(Sec. 5857, R. S. Mo. 1899, amended, Laws 1907, p. 98);State ex rel. Smith v. Berryman,142 Mo.App. 373, 379;Joplin v. Jacobs,119 Mo.App. 134;Grider v. Tally,77 Ala. 422, 54 Am. Rep. 65;29 Cyc. 1442;Montpelier v. Mills,171 Ind. 175;Bennett v. Whitney,94 N.Y. 302;Amy v Supervisors,11 Wall. 136.(2)Respondent is entitled to recover the damages sustained by him by reason of the failure and refusal of appellant to perform their ministerial duty towards him.An officer is liable in damages to the person injured, for his failure to perform a ministerial duty.State ex rel. v. Adams,101 Mo.App. 468;Steadley v. Stuckey,113 Mo.App. 582;Insurance Co. v. Leland,90 Mo. 177;State ex rel. v. Green,124 Mo.App. 88;Baltimore County Comrs. v. Baker,44 Md. 1.(3)Respondent had the right to recover his damages in a separate action, and was not precluded from doing so because he did not plead and claim them in the original mandamus proceedings.Sec. 2251, R. S. 1909;State ex rel. v. Adams,101 Mo.App. 471;Steadley v. Stuckey,113 Mo.App. 582;Insurance Co. v. Leland,90 Mo. 184;Grider v. Tally,77 Ala. 422, 54 Am. Rep. 65;People ex rel v. President etc. Wappinger Falls,45 N.Y.S. 344, 151 N.Y. 386;McClure v. Scates,67 P. 85;Railroad v. Larabee,234 U.S. 474;Gardner v. Gas & Electric Co., 154 Mo.App. 674.

FARIS, J. Graves, C. J., Bond, Walker and Woodson, JJ., concur; Williams, J., concurs in separate opinion, in which Blair, J., concurs.

OPINION

In Banc.

FARIS J.

This is an action for damages brought by plaintiff against the defendants, for that defendant Berryman, as mayor, and the other defendants as members of the city council of the city of Poplar Bluff, refused to grant to plaintiff a license to keep a dramshop in a certain building in the city of Poplar Bluff.Upon the trial nisiplaintiff recovered judgment for the sum of $ 150.From this judgment, after the conventional motions, defendants appealed to the St. Louis Court of Appeals.Therein an opinion was written in the case by Judge Reynolds, wherein Judges Nortoni and Allen concurred.[Smith v. Berryman, 173 Mo.App. 148, 156 S.W. 40.]But the learned St. Louis Court of Appeals deeming the views held by them to be contrary to an opinion by the Springfield Court of Appeals, in the case of Gardner v. Gas & Electric Co.,154 Mo.App. 666, 135 S.W. 1023, ordered that the cause be certified to this court for determination, pursuant to the Constitution, in such cases provided.

Since the facts are to be found in Smith v. Berryman, supra, and in State ex rel. v. Berryman,142 Mo.App. 373, 127 S.W. 129, we need not cumber the books with a very lengthy recital of them.Suffice it to say that some years ago plaintiff herein presented to the mayor and town council of Poplar Bluff, composed then, as before stated, of these defendants, an application for a license as a dramshop keeper.Defendants herein refused to grant plaintiff such license.Thereupon, plaintiff brought his action in mandamus to compel defendants to issue a dramshop license to him.Ultimately, this mandamus proceeding was ruled by the learned Springfield Court of Appeals in such wise as that a peremptory writ of mandamus was ordered therein, which writ defendants promptly proceeded to obey, and issued the license to plaintiff, as originally prayed for by him.[Vide, State ex rel. v. Berryman, 142 Mo.App. 373.]

Thereafter the instant action was brought, and plaintiff, as stated, had judgment herein for $ 150.Upon defendants' appeal to the St. Louis Court of Appeals, that court reversed the judgment nisi, but deeming their opinion herein to be in conflict with an opinion by the Springfield Court of Appealsthey ordered the case sent up to us, and it becomes our duty to rule it here in all respects as if it were a case wherein our appellate jurisdiction is original.

Further facts which we do not state will be found in the several opinions of the courts of appeals at the citations stated, but we reserve the right to refer to such of these facts as are necessary, or which we may find to be cogent in our discussion of the case.

We are of the opinion that in a proper situation an independent action will lie for damages accruing to a plaintiff in an antecedent mandamus proceeding; that such plaintiff having obtained his peremptory writ, may, if he show that the return made to the alternative writ by the respondent in the mandamus proceeding was false, have his damages, which have accrued to him by reason of such false return, assessed either (a) in the mandamus proceeding itself, or (b) in an independent action brought directly for that purpose.But we are also of the opinion that, absent a false return, no damages, except ordinary costs (and these subject to the court's order), can be recovered in any action brought by the relator in the mandamus action against the respondents in such action.We think an examination into the common-law history of the proceeding by mandamus clearly demonstrates the correctness of this view.

At common law no issue of fact could be raised upon the return of the respondent to the alternative writ in mandamus.The return was the ultimate pleading in the case, and was conclusive upon the relator, whether such return was true or false, and therefore such return raised nothing but pure questions of law, which went solely to the legal sufficiency of the return.However, if such return were false, an independent ancillary action lay against the respondent for making a false return.If, upon a trial of such latter action, the relator in the mandamus proceeding recovered damages for the making of the false return, he thereby became also entitled ipso facto to his peremptory mandamus.[18 R. C. L. 347.]Such a circuitous proceeding being cumbersome and unsatisfactory, the Statute of 9 Anne, ch. 20, was passed in England to abolish it.[18 R. C. L. 347;State ex rel. v. Ryan,2 Mo.App. 303.]This statute was adopted substantially, if not literally, in this State in 1825.[Sections 1,2,3, and4, p. 522,Laws 1825.]The second and third sections of the original Missouri act adopting the Statute 9 Anne, read thus:

"Sec 2.Be it further enacted, That when any writ of mandamus shall be issued out of any court of this State, and return shall be made thereunto, it shall be lawful for the person or persons suing or prosecuting such writ, to plead to or traverse all or any of the material facts contained in such return -- to which the person or persons making such return shall reply, take issue, or demur; and such further proceedings, and in such manner, shall be had therein, for the determination thereof, as might have been had if the person or persons suing such writ had brought his or their action on the case for a false return.And if any issue shall be joined upon such proceedings, the person or persons suing such writ shall and may try the same, in such place, as an issue joined on such action on the case should or might have been tried; and in case a verdict should be found for the person or persons suing such writ, or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication or other pleading, he or they shall recover his or their damages and costs, in such manner as he or they might have done in an action on the case as aforesaid; and such damages and costs shall and may be levied by execution, as in other cases -- and a peremptory writ of mandamus shall be granted, without delay, for him or them for whom judgment shall be given, as might have been if such return had been adjudged insufficient; and in case judgment shall be given for the person or persons making such return to such writ, he or they shall recover his or their costs of suit, to be levied in manner aforesaid.

"Sec 3.Be it further enacted, That if any damages shall be recovered, by virtue of this act, against...