State ex rel. Bismark Grill, Inc. v. Keirnan

• Decision Date: 08 May 1944
• Citation: 181 S.W.2d 798,238 Mo.App. 507
• Parties: State of Missouri, at the Relation of Bismark Grill, Inc., a Corporation, Defendant in Error, v. Joseph F. Keirnan, Director of Liquor Control, for Kansas City, Missouri, Plaintiff in Error
• Court: Kansas Court of Appeals

181 S.W.2d 798

238 Mo.App. 507

State of Missouri, at the Relation of Bismark Grill, Inc., a Corporation, Defendant in Error, v. Joseph F. Keirnan, Director of Liquor Control, for Kansas City, Missouri, Plaintiff in Error

Court of Appeals of Missouri, Kansas City

May 8, 1944

Error to Jackson Circuit Court; Hon. Marion D. Waltner, Judge.

Reversed.

Wm. E Kemp and Arthur R. Wolfe for plaintiff in error.

(1) The court erred in granting the peremptory writ of mandamus and in refusing respondent's requested instruction in the nature of a demurrer to all of the evidence for the reason that respondent is vested with the exclusive power to issue liquor permits and in passing on applications for liquor permits exercises a judicial discretion which cannot be controlled by mandamus and the evidence fails to show that respondent abused such discretion or exercised same in an arbitrary or unlawful manner. (2) In passing on applications for liquor permits the director of liquor control exercises a judicial discretion which cannot be controlled by mandamus. State ex rel. Renner v. Noel, Supervisor of Liquor Control, 346 Mo. 286, 140 S.W.2d 57, 58; Mangiercina v. Haney, 141 S.W.2d 89, 91, 92; And the decisions cited in the above two cases.

Clyde Taylor and Walter Calvin for defendant in error.

(1) Since this is a suit at law tried to a judge without separate findings of fact or conclusions of law being asked or given the sole question is whether there is any evidence or reasonable inference therefrom to support the judgment on any theory. A suit in mandamus is an action at law and on an appeal therein it is governed accordingly. 38 C. J 543, 948; State v. Merry, 104 Mo.App. 458, 79 S.W. 933; State ex rel. v. Bourne, 151 Mo.App. 104, 131 S.W. 896; State ex rel. v. German Ins. Co., 169 Mo.App. 354, 152 S.W. 618; State ex rel. v. Kernes, 180 Mo.App. 355, 167 S.W. 1080; State ex rel. v. Dreyer, 183 Mo.App. 465, 167 S.W. 1123. A suit at law tried to the court is governed by Sec. 1103, R. S. Mo. 1939, and where in such case separate findings and conclusions are not asked or given, the judgment must be affirmed if there is any substantial evidence to support the judgment on any theory. Brooks v. McCray, 145 S.W.2d 985; Mederacke v. Friesenham, 145 S.W.2d 461; Weisguth v. Burke, 138 S.W.2d 689; Pfenninger v. Brevard, 129 S.W.2d 924; Seneca v. Missouri Co., 119 S.W.2d 991; Paulette v. Sernes, 103 S.W.2d 573; Cave v. Missouri Insurance Co., 102 S.W.2d 755; Hess v. Hessel, 102 S.W.2d 729; Burman v. Verzean, 85 S.W.2d 217; Metropolitan Co. v. Erdwins, 83 S.W.2d 597; North Side Co. v. Sparr, 17 S.W.2d 892; Bailey v. School Dist., 77 S.W.2d 1017; Eutsler v. Mixon, 77 S.W.2d 655; Bottoms v. Randall, 68 S.W.2d 871; Merrick v. Insurance Co., 66 S.W.2d 967; Baldwin v. Schonoff, 105 S.W.2d 669; Long v. Montgomery, 22 S.W.2d 206; Warren v. Fritsch, 14 S.W.2d 29. (2) The grounds of the motion for a new trial restricted by the assignments of error and the points and authorities confined the inquiry as to whether there is any evidence to support the judgment. All grounds in a motion for a new trial not carried into the assignments of error and all assignments of error not carried into points and authorities are waived and abandoned. Perryman v. Mo. Pac. Co., 31 S.W.2d 4; Burch v. Cleveland Co., 40 S.W.2d 688; Pence v. K. C. Co., 59 S.W.2d 633; Scott v. Railway, 62 S.W.2d 834; Willard v. Robertson, 129 S.W.2d 911; Magers v. Insurance Co., 155 S.W.2d 148. (3) Under the ordinances of Kansas City, the director has no discretion except to issue a license where the standards and restrictions of the ordinance have been met and fully complied with. Ordinance No. 3437 of Kansas City, Missouri, and amendments thereto, set out in the Abstract of plaintiff in error, pages 98-115. (4) Where the statute or ordinance provides that a license shall issue under given circumstances and upon the conjunction of certain conditions, then, such conditions existing, it is settled that the license shall issue and if the licensing authorities refuse to issue it, it can be compelled to do so by mandamus. State ex rel. v. Wooten, 139 Mo.App. 221, 122 S.W. 1101; State ex rel. v. Johnson County Court, 138 Mo.App. 427, 122 S.W. 318; State ex rel. v. Packett, 136 Mo.App. 700, 119 S.W. 25; State v. Stiff, 104 Mo.App. 685, 78 S.W. 675. (5) There was abundant evidence supporting the judgment to the effect that the director found that the applicant was fully qualified to, and was entitled to receive a permit, except for one specified ground which was not legally sufficient to justify refusal to issue the permit. Various pages of the record set out in the brief. (6) When the director placed the refusal to grant the application of the corporation upon one specific ground and particularly where he found that otherwise the applicant was entitled to the license, he cannot after this suit was brought, change his position and justify the refusal upon any other ground. 21 C. J. 1222; 19 Am. Jur. 706; Railway Co. v. McCarthy, 96 U.S. 259; Gold v. Barat, 8 Wend. 562; Hollbrook v. White, 24 Wend. 169; Everett v. Saltus, 46 N.Y. 223; Duffy v. O'Donovan, 46 N.Y. 233; Winter v. Coit, 7 N.Y. 88. (7) The director was not authorized to refuse a permit to the corporation on the ground it proposed to employ Lyons, a disqualified employee because his licenses had been revoked. No license to Lyons had been revoked. The ordinance did not disqualify one whose permit had been revoked. Where a statute is plain and unambiguous there is no room for construction. Clark v. K. C., 118 S.W. 40; Donaldson v. Donaldson, 135 S.W. 791; Treferey v. Eichenseer, 171 S.W. 930; Elsas v. Montgomery, 50 S.W.2d 130; Cummins v. Kansas City Co., 66 S.W.2d 920; Warner v. Goltra, 67 S.W.2d 47; Jacobmeyer v. Thatcher, 92 S.W.2d 640; State ex rel. v. Public Service, 110 S.W.2d 367. (8) Even if the ordinance had granted mere permissive authority (not mandatory) to the director, yet there is ample evidence in the record to justify the judgment on the ground that the action of the director constituted an abuse of discretion subject to review in mandamus. 33 C. J. 552; State ex rel. v. Noell, 140 S.W.2d 57; Mangier v. Harvey, 141 S.W.2d 89. Abuse of discretion is always subject to judicial review. (9) The director was without authority to disregard the separate entity of the corporation. 18 C. J. S. 368; 14 C. J. 81. (10) When the director placed his refusal on one sole specified ground the law will not permit him, after litigation has begun, to justify his action on any other ground. "He cannot then mend his hold." 21 C. J. 1222; 19 Am. Jur. 706; Railway Co. v. McCarthy, supra, and cases there cited. (11) Meaning of discretion as used in the principle that a court in mandamus will not review a good faith exercise of such discretion. Fuert v. Caster, 73 S.W. 576; Cabanne v. Macadaras, 91 Mo.App. 73; Vastine v. Bailey, 46 Mo.App. 413; State v. Caruren, 41 S.W.2d 902; 17 C. J. 228; 4 C. J. 797-798; Re Farmers Bank & Trust Co., 129 U.S. 206; 2 R. C. L. 212. (12) Evidence in the record showing the director did not in good faith exercise a discretion placed in him by law, but acted arbitrarily without warrant of law, offensively and from personal whim. Various pages in the record are given.

Cave, J. Bland, J., concurs.

OPINION

CAVE

This is an action, in mandamus, brought by the relator against Joseph F. Keirnan, Director of Liquor Control for Kansas City, seeking to have respondent issue to relator a retail dealer's license entitling it to dispense intoxicating liquors at 900 Walnut Street, Kansas City.

An alternative writ was issued commanding respondent to either issue the license or show cause for his refusal to do so. The trial resulted in a judgment which, in effect, made the alternative writ peremptory, commanding respondent to issue relator a permit for a license to dispense intoxicating liquors at said address. Respondent has appealed. The parties will be referred to as they were in the trial court, relator and respondent.

We have italicized the word license and the clause a permit for a license because relator's cause of action, as stated in its petition, is founded upon the refusal of respondent to issue it a license. Nowhere in the petition is any reference made to a permit for a license. Throughout the hearing before the director and the trial in the circuit court, these two matters were referred to interchangeably. Sometimes there was a reference to an application for a license and at other times an application for a permit. Under the city ordinance the proper procedure is for an applicant to apply to the Liquor Director for a permit and if it is issued by the director, then it is presented to the Commissioner of Licenses of the city who, upon the payment of the proper fee, issues the license. The permit is good until revoked, while the license is issued for a period of six months. We mention this distinction because there is some discussion of it in the briefs. We do not consider it of vital importance because when the whole record is read and considered it is apparent that relator was seeking proper authority, by whatever name or term, to sell intoxicating liquors at retail and such authority was denied it by respondent, and the trial court, by its judgment, ordered that proper authority be issued. We shall decide the validity of that judgment without regard to the loose use of the two terms in the hearing before the Director and the trial in the circuit court.

The application now under consideration was filed by relator, Bismark Grill, Inc., a corporation, with respondent, who will hereafter be referred to as the director, sometime shortly after June 2, 1941, the exact date does not appear in the record.

Relator's petition...