State ex rel. and to Use of Bader v. Flynn

• Decision Date: 03 March 1942
• Parties: STATE OF MISSOURI, AT THE RELATION AND TO THE USE OF ARTHUR H. BADER, EXCISE COMMISSIONER OF THE CITY OF ST. LOUIS, RELATOR, v. WILLIAM B. FLYNN, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, RESPONDENT
• Court: Missouri Court of Appeals

159 S.W.2d 379

236 Mo.App. 577

STATE OF MISSOURI, AT THE RELATION AND TO THE USE OF ARTHUR H. BADER, EXCISE COMMISSIONER OF THE CITY OF ST. LOUIS, RELATOR, v. WILLIAM B. FLYNN, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, RESPONDENT

Court of Appeals of Missouri, St. Louis

March 3, 1942

Original proceeding in prohibition, in which relator filed motion for judgment on the pleadings.

Motion sustained and preliminary rule made absolute.

J. R Weinbrenner for respondent.

(1) When judicial (or quasi-judicial) discretion has been abused or arbitrarily exercised, the field of discretion is regarded as abandoned and equity will interfere. When the law devolves upon an officer, judicial or otherwise, the exercise of a discretion, it is a sound legal one, not a capricious or oppressive one. State ex rel. Shartell v. Humphries, 93 S.W.2d 924; State ex rel. Wagner v. Cook, 187 S.W. 1122, 1123; State ex rel. McCleary v. Adcock, 206 Mo. 550, 557; State ex rel. Kelleher v. Board, 134 Mo. 296; Walther v. Cape Girardeau, 166 Mo.App 477; State ex rel. Journal v. Dreyer, 167 S.W. 1123 1127; Fox Film Co. v. Chicago, 247 F. Rep. 231; Walker v. Birmingham, 316 Ala. 206; Richardson v. Augustine, 5 Okla. 667. (2) The citizen has a right to appeal to the remedial processes of a court of equity when he would be otherwise without remedy. Hence mandatory injunctions may be invoked to compel the undoing of something wrongfully done. State ex rel. Adamson v. Lafayette County, 41 Mo. 222, 227; State ex rel. Shartell v. Humphries, supra. (3) (a) When the trial court has jurisdiction of the subject-matter and the parties prohibition will not lie. State ex rel. North v. Miller, 280 S.W. 47; State ex rel. Bromschwig v. Hartman, 300 S.W. 1054. (b) A petition in a case of which the circuit court has general jurisdiction is subject to demurrer or amendment in the circuit court and prohibition does not lie. State ex rel. Johnson v. Sevier, 98 S.W.2d 677, 680; State ex rel. Leake v. Harris, 334 Mo. 713. (4) The question raised before the circuit court, namely, the abuse of the discretionary power of the relator, is a question of fact to be determined by the circuit court, and is a subject over which it has jurisdiction and, therefore, should not be interfered with by prohibition. State ex rel. Adamson v. Lafayette County, supra; State ex rel. Leake v. Harris, supra.

Joseph F. Holland, George L. Stemmler and Charles F. Hamilton for relator.

(1) Secs. 2 (a), 31 (A), and 32 of Ordinance 40630 of The City of St. Louis. (2) Courts of equity will not sit in review of the proceedings of subordinate municipal tribunals; and, where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed. 32 C. J., p. 260, sec. 410; 2 High on Injunctions (4 Ed.), sec. 1240; Spellings "The Law of Injunctions" (2 Ed.), sec. 238; Hughes v. Board of Health (Mo.), 137 S.W.2d 523, 526; State ex rel. Brown v. Stiff, 104 Mo.App. 685, 691; Cooper v. Hunt, 103 Mo.App. 9, 16; Selecman v. Matthews (Mo.), 15 S.W.2d 788, 790. (a) It is a fundamental rule of law that whenever courts or other tribunals are in duty bound to exercise their own judgment, no superior court will attempt to exercise it for them. State ex rel. Brown v. Stiff, 104 Mo.App. 685, 691. (3) The act of revocation by the excise commissioner is a judicial or quasi-judicial act; it is the nature of a judgment and cannot be attacked except for fraud. Cooper v. Hunt, 103 Mo.App. 9, 16, 17; State ex rel. Schade v. Russell, 131 Mo.App. 638, 650; Kochtitzky v. Herbst, 160 Mo.App. 443, 452. (4) The business of selling liquor is not a right, and cannot be likened to the ordinary callings of life; it is a mere privilege to be granted or withheld at the exclusive discretion of the body empowered to license. State ex rel. Brown v. Stiff, 104 Mo.App. 685, 690; Austin v. State, 10 Mo. 591; State ex rel. Kyger v. Holt County Court, 39 Mo. 521, 524; State ex rel. Troll v. Hudson, 78 Mo. 302, 304. (5) The judiciary cannot interfere, either by mandamus or injunction, with an executive officer, such as relator here, in the discharge of his official duties, unless those duties are of a character purely ministerial involving no exercise of judgment or discretion. Kirwan v. Murphy, 189 U.S. 35, 47 L.Ed. 698; Litchfield v. Richards, 9 Wall. 575, 19 L.Ed. 681; Mickadiet v. Payne, 269 F. 194, 197; Kearney v. Laird, 164 Mo.App. 406. (6) In determining the sufficiency of a petition to state a cause of action, the court will disregard all conclusions of the pleader unsupported by appropriate allegations of fact. When such conclusions in plaintiff's petition are so disregarded, said petition wholly fails to set out any cause of action for equitable relief. Newton County Farmers' and Fruit Growers' Exchange v. Kansas City Southern Ry. Co., 326 Mo. 617, 31 S.W.2d 803; Remington v. Flemington School Dist. (Mo.), 22 S.W.2d 800; Mack v. Eyssell, 332 Mo. 671, 59 S.W.2d 1049; 49 C. J., pp. 43, 59, secs. 17, 37. (7) Where a petition states no cause of action against defendant, an order or decree in plaintiff's favor is wholly void, and, in the absence of another adequate remedy, prohibition will lie to prevent or restrain its enforcement and the exercise of further jurisdiction by the inferior court. State ex rel. Castlen v. Mulloy, 331 Mo. 776, 780, 55 S.W.2d 294; State ex rel. Smith v. Joynt, 344 Mo. 686, 698, 127 S.W.2d 708, 714. (8) State ex rel. Caulfield v. Sartorius, 344 Mo. 919, 927, 928, 130 S.W.2d 541, 544, 545; Sec. 1184, R. S. Mo. 1939; Ross Const. Co. v. Chiles et al., 344 Mo. 1084, 130 S.W.2d 524; State ex rel. Caulfield v. Sartorious, supra; Marsalla v. Gentry, 232 S.W. 1046, 1048; Constitution of Missouri, Art. III; White v. Berry, 171 U.S. 366, 53 L.Ed. 199; Selecman et al. v. Matthews et al., 321 Mo. 1047, 1051, 15 S.W.2d 788, 790, 63 A. L. R. 512; State ex rel. Shartel v. Westhues, 320 Mo. 1093, 1112, 1113, 9 S.W.2d 612, 620; Louisiana v. McAdoo, 234 U.S. 627, 58 L.Ed. 1506, 1509. (9) State ex rel. Mueller v. Wurdeman (Mo.), 232 S.W. 1002, 1004; State ex rel. Busby v. Cowan, 232 Mo.App. 391, 396, 107 S.W.2d 805, 808.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON, J.

This is an original proceeding in prohibition by which relator, the duly appointed Excise Commissioner of the City of St. Louis, seeks to have this court prohibit respondent, Hon. William B. Flynn, the judge presiding in Division 2 of the Circuit Court of the City of St. Louis at all times herein mentioned, from proceeding with a certain injunction suit pending before him.

Relator, by Section 2(a) of Ordinance 40630 of the City of St. Louis is given the right, duty, power, and authority to revoke for cause all licenses issued pursuant to the provisions of said ordinance, which ordinance relates to the regulation and control of the manufacture, brewing, sale, and distribution of intoxicating liquor in the City of St. Louis.

Section 31(A) of said ordinance provides that whenever it shall be shown, or whenever the Excise Commissioner of the City of St. Louis has knowledge, that a person licensed has not at all times kept an orderly place or house, or has violated any of the provisions of said ordinance, or any rule, regulation, order or direction of the Excise Commissioner, the latter shall revoke, or, in his discretion, suspend the license of such person so licensed.

Section 32 of said ordinance provides that before revoking or suspending any licenses, the Excise Commissioner shall give the licensee at least ten days' written notice of any complaint or charge and the nature thereof, and shall fix the date for the hearing of said complaint or charge, upon which hearing the licensee shall have the right to have counsel and to produce witnesses in his behalf.

Section 18 of said ordinance provides, in part, that no licensee "shall sell, give away, or otherwise dispose of, or suffer the same to be done, upon or about his premises, any intoxicating liquor in any quantity on the first day of the week, commonly called Sunday."

On August 30, 1941, Mabel Gittens Stubbs filed in the circuit court her petition against relator, which alleged, in substance, that on July 21, 1941, and for a long time prior thereto, plaintiff was engaged in the business of selling liquors at retail at 5867 Manchester Avenue in the City of St. Louis under a license issued by the License Collector and approved by the Excise Commissioner of the City of St. Louis; that on July 21, 1941, a certain citation was issued by relator charging plaintiff with selling and giving away intoxicating liquor on Sunday, July 20, 1941, which citation was returnable August 5, 1941; that thereafter on August 28, 1941, relator purported to hear evidence and pass on questions of law pertaining to said citation "and did, without just cause revoke the license of this plaintiff to sell intoxicants under the license heretofore issued to this plaintiff . . . that the action of defendant in revoking this plaintiff's license was oppressive, and without warrant of law, and that the defendant did abuse the powers imposed in him under and by virtue of the laws of the City of St. Louis and State of Missouri by revoking said license . . . that the evidence as presented at the hearing before this defendant on the 28th day of August, 1941, on which the defendant based his order of revocation of plaintiff's license, was insufficient to show that this plaintiff did sell, give away or otherwise dispose of intoxicating liquors on Sunday, etc."

The petition prayed for a temporary injunction, for a trial of the case on its merits, and for a permanent injunction restraining the defendant from suspending and revoking the...