State at Relation of Heller v. Thornhill
| Decision Date | 03 November 1913 |
| Citation | 160 S.W. 558,174 Mo.App. 469 |
| Parties | STATE OF MISSOURI at the Relation of WILLIAM A. HELLER, Appellant, v. JOHN G. THORNHILL et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. Wm. C. Ellison, Judge.
AFFIRMED.
Judgment affirmed.
Cook Cummins & Dawson for appellant.
Ellis G. Cook for respondents.
Relator applied to the circuit court of Nodaway county for a writ of mandamus to compel the county court to grant him a license to keep a dramshop in Maryville, a city of more than 2000 inhabitants. Upon the issuance and service of the alternative writ, the judges of the county court, as respondents thereto, moved to quash the petition and writ. This motion was sustained and relator appealed.
The reasons stated in the motion to quash are, first, that the facts pleaded in the petition and stated in the alternative writ are not sufficient to give the circuit court jurisdiction over the acts of the county court complained of; second, that the petition and writ fail to state facts sufficient to constitute a cause of action.
An examination of relator's petition for the writ, and also the alternative writ itself, discloses that on their faces they show that, in the proceeding before the county court to obtain a license, that court, in passing upon the sufficiency of relator's petition for a license, heard the evidence and found and adjudged that said petition did not contain a two-thirds majority of the persons qualified by law to sign the same. While relator's petition for mandamus says that his petition for license did contain a two-thirds majority, yet it also says that the county court heard his case, and, after finding that relator had otherwise qualified himself, found against him on the question of whether his petition contained a two-thirds majority, and thereupon refused to grant the license. The case, therefore, is not one where the county court has refused to hear or act upon relator's application, nor is it one in which the county court has found all the necessary questions in relator's favor and yet refuses to issue the license. It is one where the relator pleads that, in his opinion, he had a two-thirds majority petition before the county court, but that said tribunal, "after listening to all the evidence" had found and adjudged that he did not have, wherefore, he asks the circuit court to hear the case anew and peremptorily command the county court to grant him a saloon license. This raises the question whether the judgment of the county court, finding that the petition did not contain the required number of signers and refusing the license because of such insufficiency, can be reviewed, or a new trial thereof be had, by mandamus, in the circuit court.
It is conceded that mandamus will not lie to control or review the action of any court where the act complained of is judicial. If, therefore, in hearing and passing upon the matters involved in the determination of the question of relator's right to a saloon license, the county court acts in a purely ministerial capacity, then mandamus can be invoked herein. But if the county court in such matters acts judicially, the writ will not lie.
Our courts have always held that in passing upon an application for a saloon license, the county court acts judicially. [Burkharth v. Stevens, 117 Mo.App. 425; State ex rel. v. Higgins, 84 Mo.App. 531; State ex rel. v. Heege, 37 Mo.App. 338; Cooper v. Hunt, 103 Mo.App. 9, 77 S.W. 483.] It has been held heretofore also that the jurisdiction to grant saloon licenses was vested exclusively in the county court. [State v. Evans, 83 Mo. 319; Austin v. State, 10 Mo. 591; State ex rel. v. Fort, 107 Mo.App. 328, 81 S.W. 476; Burkharth v. Stevens, 117 Mo.App. 425; State ex rel. v. Higgins, 84 Mo.App. 531.] This being true, it would seem that mandamus would not lie.
It is urged, however, in behalf of relator that since section 7191, Revised Statutes of Missouri 1909, leaves it discretionary with the county court whether the license shall be granted or not if the petition contains only a majority of the persons qualified to sign, but makes it mandatory where the petition is signed by a two-thirds majority, this makes the matter of hearing and passing upon an application for a saloon license, where the applicant claims to have a two-thirds majority, a mere ministerial act, and consequently the above decisions do not apply to this case and mandamus will lie. It seems to the writer, however, that whether a certain act is ministerial or judicial depends upon the nature and character of the act itself and upon the things necessarily involved therein, rather than upon what the applicant may claim in his petition for the act. An act cannot be said to be ministerial when it rests upon or is called into existence by the exercise of judgment upon matters of fact. [Teat v. McGaughey, 22 S.W. 302.] Where the duty is such as necessarily requires the examination of evidence and the decision of questions of law and fact, such a duty is not ministerial, and not being ministerial the decision of a public officer to whom the discharge of such duty has been confided cannot be reviewed or reversed in a mandamus proceeding. [Henkel v. Millard, 97 Md. 24, l. c. 31; Duvall v. Swann, 94 Md. 608, l. c. 617-18.] Even in cases where, without the aid of mandamus, there would be a failure of justice, the writ will lie to enforce the performance of a strictly ministerial duty only; and by a strictly ministerial duty is meant one that is absolute and imperative requiring neither the exercise of official discretion nor judgment. [Wailes v. Smith, 76 Md. 469, l. c. 477.] The general rule is that where a subordinate body is vested with power to determine a question of fact the duty is judicial and though it can be compelled by mandamus to investigate the fact it cannot be directed to decide in a particular way, however clearly it may be made to appear what the decision ought to be. [Abrams v. Hempstead, 45 Hun 272.] Mandamus will not be granted to compel the performance of an act in a case where numerous questions of law and fact arise, some of them depending upon circumstances which rest in parol proof. [U. S. v. Commissioner, 5 Wall. 563, 18 L.Ed. 692.] Of course under section 7191, Revised Statutes of Missouri 1909, in cities of 2000 inhabitants or more, the county court must grant a license when the the applicant has shown himself qualified therefor, but one of these preliminary requirements and qualifications is that he have a petition signed by a two-thirds majority of the persons in the block who are qualified to sign. But this mandatory duty does not arise until all of these preliminary questions have been decided in the applicant's favor. The statute says if the county court shall be of the opinion that the applicant is a law-abiding assessed tax-paying male citizen, and if the petition contains a two-thirds majority, etc., then the court shall grant the license. And so in all the cases cited, where mandamus was used to compel the county court to act, the county court had found all these preliminary matters in the relator's favor. [Bean v. County Court, 33 Mo.App. 635; State ex rel. v. McCammon, 111 Mo.App. 626, 86 S.W. 510; Scarritt v. Jackson County, 89 Mo.App. 585; State ex rel. v. Packett, 136 Mo.App. 700, 119 S.W. 25; State ex rel. v. Turner, 210 Mo. 77, 107 S.W. 1064.] The writer has been unable to find a decision where mandamus was used to compel the county court to act in a case where one of these preliminary questions, resting upon matters of fact requiring the hearing of evidence and the reaching of a conclusion based thereon, had been decided by the county court adversely to the relator.
It is true that the decisions in the various States are conflicting upon the question whether mandamus will lie in a case where the duty to act is made mandatory upon an inferior tribunal upon the existence of certain facts being shown. Some of the cases hold that even if the determination of the preliminary questions, upon which the necessity of action rests, does involve the exercise of judgment and discretion, still mandamus will lie. Others, however, hold to the contrary. And in summing up the decisions on this question, Merrill on Mandamus, sec. 48, says: "The weight of authority seems to be that erroneous decisions as to preliminary questions of law may be reviewed by the writ; that erroneous decisions as to preliminary questions of fact may be reviewed, unless the general nature of the duties to be performed are considered to be judicial, or the law intended that such decision should be final." It would seem that, under our laws relating to the granting of dramshop licenses, not only is the general nature of such act considered judicial, but that, as the jurisdiction to grant such licenses is confided exclusively to the county court the law intended that court's decision should be final. And such has been the general understanding of the Missouri bench and bar, as in every case wherein mandamus was sought to obtain a saloon license, it was always thought necessary that the record of the county court should affirmatively find every preliminary fact in the applicant's favor. Nowhere in the law is there any provision authorizing the circuit court to pass upon the sufficiency of an application for a dramshop license. If the circuit court in a mandamus case can hear the evidence and decide the questions involved in the granting of a saloon license and order the county court to issue the license, then it is the circuit court, and not the county court, that is granting it. A writ of mandamus cannot be made to take the...
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