Smith v. Berryman

• Decision Date: 01 December 1917
• Docket Number: No. 17954.,17954.
• Parties: SMITH v. BERRYMAN et al.
• Court: Missouri Supreme Court

199 S.W. 165

272 Mo. 365

SMITH v. BERRYMAN et al.

No. 17954.

Supreme Court of Missouri. In Banc.

December 1, 1917.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by William A. Smith against John W. Berryman and others for damages for refusal to grant a dramshop license. Judgment for plaintiff, and defendants appealed to the St. Louis Court of Appeals, which reversed the judgment and certified the case to this court (173 Mo. App. 148, 156 S. W. 40). Reversed without remanding.

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 nisi plaintiff 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 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. loc. cit. 378, 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. 378, 127 S. W. 129.

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 Appeals, they 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.

David W. Hill, of Poplar Bluff, and John M. Atkinson, of St. Louis, for appellants. N. A. Mozley, of Bloomfield, and Ernest A. Green, of St. Louis, for respondent.

FARIS, J. (after stating the facts as above).

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, c. 20, was passed in England to abolish it. 18 R. C. L. 347; State ex rel. v. Ryan, 2 Mo. App. loc. cit. 307. This statute was adopted substantially, if not literally, in this state in 1825. Sections 1, 2, 3, and 4, p. 522, Laws Mo. 1825. The second and third sections of the original Missouri act adopting the Statute of 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 any person or persons making such returns to such writ as aforesaid, he or they shall not be liable to be sued in any other action or suit, for the making such return, any law, usage or custom to the contrary notwithstanding."

The above provisions have been carried forward in our statutes practically unchanged in substance, and without any material changes even in verbiage. The Legislature has contented itself with dividing the pronouncement into more convenient sections. Cf. sections 2547, 2548, 2549, 2550, 2551, and 2554, R. S. 1909. While the meaning of section 2551, supra, is not as clear as it might have been made, we are of the opinion that, read in the light of the common-law history of mandamus, as well as in the light thrown upon the meaning thereof by section 2554, supra, which was section 3, supra, of our original enactment, it is fairly apparent that no action lies for damages, absent a false return; in short, that within the purview of both the common law and of our present statute no recoverable damages accrue to the relator for that he was compelled to bring mandamus, unless the respondent by making a false return, and thereby raising a false issue of fact, as contradistinguished from pure issues of law, puts the relator to vexation and expense in disproving such false issue of fact. In such cases, and in no other, can a successful relator in mandamus recover damages. In other words, if there is no false return, no damages can be recovered. If there is a false return, damages therefor may be recovered either in the mandamus proceeding itself, or by an independent action brought solely for that purpose. As forecast above, section 2554, supra, strongly (in the light of the common law, conclusively) points to this view. For the latter section says that:

If damages "shall be recovered, by virtue of this article [referring specifically to section 2551, supra], against any person making return to such writ, he shall not be liable to be sued in any other action or suit for making such return." (Italics are ours.)

See State ex rel. v. Ryan, 2 Mo. App. loc. cit. 308.

Since, therefore, at common law the only possible mode of procedure in case of a false return was to sue for damages therefor in a separate action, the language of section 2554, supra, is seen to be a conditional abrogation of the common law; that is to say, said ...