State ex rel. Barnett v. Sappington

• Citation: 260 S.W.2d 669
• Decision Date: 14 September 1953
• Docket Number: No. 43471,No. 1,43471,1
• Parties: STATE ex rel. BARNETT v. SAPPINGTON et al
• Court: United States State Supreme Court of Missouri

Page 669

260 S.W.2d 669

STATE ex rel. BARNETT v. SAPPINGTON et al.

No. 43471.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1953.

Carl F. Sapp, Columbia, for appellant.

L. W. Byars, Columbia, for respondents.

COIL, Commissioner.

Plaintiff-appellant sought a writ of mandamus requiring defendants-respondents, as members of the city council of the City of Columbia, to issue to plaintiff a city permit for the sale at retail of intoxicating liquors in the original package. The alternative writ was issued and a return, a reply to the return, and an answer to the reply, were filed. After a hearing, the trial court quashed the alternative writ. Plaintiff-relator's 'Motion to Reconsider or Motion for New Trial' was overruled and plaintiff appealed.

Defendants have filed a motion to transfer to the Kansas City Court of Appeals. Even in the absence of such a motion, it is our duty to examine the record to ascertain if this court has appellate jurisdiction. We have concluded that the cause must be transferred.

Appellant's jurisdictional statement in his brief is: 'The jurisdiction of the appeal, therefore, lies in the Supreme Court of the State of Missouri for the reason that this is an action in mandamus against the defendants respondents in their capacity as public officials, elected officers, and councilmen of the city of Columbia, a municipal corporation and political subdivision of the State of Missouri, Constitution of Missouri, 1945, Article V, Sec. 3, RSMo 1949 [V.A.M.S.].' As appellant now apparently concedes, we do not have jurisdiction for the reasons assigned. Councilmen of a municipality are not state officers within the meaning of Const. Art. V, Sec. 3, V.A.M.S. Stratton v. City of Warrensburg, Mo.Sup., 159 S.W.2d 766; State ex rel. Kirks v. Allen, Mo.Sup., 250 S.W.2d 348, 350. The City of Columbia is not a party defendant and, in any event, that city is not a political subdivision of the state within the meaning of Const. Art. V, Sec. 3, V.A.M.S. Ingle v. City of Fulton, Mo., 260 S.W.2d 666; Stratton v. City of Warrensburg, supra.

We do not have jurisdiction based upon the 'amount in dispute'. 'When the object of an action is not to obtain a money judgment, but other relief, the 'amount in dispute,' in an appellate jurisdictional sense, must be determined by the value in money of the relief to plaintiff, or the loss to defendant, should the relief be granted, or, vice versa, should the relief be denied.' Ingle v. City of Fulton, supra. There is no affirmative showing in the record of any 'amount in dispute'.

In his suggestions in opposition to defendants-respondents' motion to transfer, plaintiff-appellant contends that we have jurisdiction 'for the reason that constitutional questions have been raised and are in issue. (Constitution of Missouri 1945, Article V, Section 3)'. In the petition for the alternative writ it was averred that the petitioner was entitled to the license as a matter of right 'and the action of the members of the Columbia City Council denying such license to the petitioner was erroneous, wrongful, discriminatory, arbitrary, and unconstitutional'; and that 'the action of the members of the Columbia City Council has deprived the petitioner of his property without due process of law within the meaning of the Fifth Amendment to the Constitution of the United States and Article 1, Section 10 of the Constitution of 1945 for the State of Missouri.'

Respondents' return denied these averments and alleged that the zoning ordinances divided the city into seven districts and 'that all of said districts are reasonably zoned under the laws of Missouri for the purpose of promoting health, safety, morals and the general welfare of the City of Columbia and that the ordinances regulating the permissive use of the respective districts and within the districts, are reasonable and uniform in their application to the respective areas and are administered reasonably and not arbitrarily.'

Plaintiff's reply to defendants' return denied that 'the ordinances are reasonable and uniform in their application and denies that they are administered reasonably and not arbitrarily,' and alleged that 'the issuance of licenses to sell intoxicating liquor in the original package is a permissive use under said section but that in its application depends upon the whim and caprice of the moment of the City Council of the City of Columbia, Missouri, and that the section of the zoning ordinances is void and unconstitutional in its application.'

The evidence consisted of an agreed statement of facts and the pertinent portions of the zoning ordinances and the intoxicating liquor ordinance. At the hearing, no mention was made of any constitutional question. The trial court gave no reasons for its judgment and did not indicate in any way that it had ruled on a constitutional question.

Plaintiff's motion to reconsider or for a new trial contained these statements:

'* * * that Section 1163 of Chapter 28 of the zoning ordinances of the City of Columbia, Missouri, is vague and uncertain allowing the City Council of the City of Columbia, Missouri, at the whim and caprice of the City Council to determine what is a conforming use and what is a nonconforming use of relator's premises. * * * that Section 1163 of Chapter 28 of the zoning ordinances of the City of Columbia, Missouri, is unconstitutional in its application for the reason that it does not apply to others in similar businesses under similar circumstances and in similar local business districts. * * * that the provisions of Section 1172 of the zoning ordinances of the City of Columbia, Missouri, are void and contrary to the Constitution of the State of Missouri.'

Appellant's brief contains four statements under 'Points and Authorities.' They are in substance: (1) under the state law and the city ordinances, relator-appellant is entitled to the license sought; (2) 'if the court finds that the sale of intoxicating liquor in the original package is a nonconforming use of Relator's premises under the provisions of' the zoning ordinances, then such ordinances prohibit the sale of liquor in the original package in Columbia and are invalid and void, and thereby 'deprive the Relator of the use of his property without due process of law'; (3) Section 1163 of the zoning ordinances...