State ex rel. Casey's General Stores, Inc. v. City Council of Salem, No. 13685

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PREWITT; CROW; I concur in the principal opinion, but find it necessary to comment on a troublesome aspect of this case that was not addressed by respondents, either at trial or on appeal. The parties agree, in their briefs, that the City of Salem, b
• Citation: 699 S.W.2d 775
• Parties: STATE of Missouri, ex rel. CASEY'S GENERAL STORES, INC., Relator-Appellant, v. CITY COUNCIL OF SALEM, Missouri, Mayor Clarence Inman, Ruth Mullnack, Ray Weaver, Bill Riley, Jr., Russell Weller, and Nadine Victor, City Clerk, Respondents.
• Decision Date: 21 October 1985
• Docket Number: No. 13685

Page 775

699 S.W.2d 775 STATE of Missouri, ex rel. CASEY'S GENERAL STORES, INC.,
Relator-Appellant,
v.
CITY COUNCIL OF SALEM, Missouri, Mayor Clarence Inman, Ruth
Mullnack, Ray Weaver, Bill Riley, Jr., Russell
Weller, and Nadine Victor, City Clerk,
Respondents. No. 13685. Missouri Court of Appeals,
Southern District,
Division Three. Oct. 21, 1985.

Page 776

John S. Beeler, Houston, for relator-appellant.

Jerry L. Wilkerson, Salem, for respondents.

PREWITT, Chief Judge.

The Board of Aldermen of Salem refused to issue a liquor license to appellant because of the location of the store where the license would be exercised. The Board contended that refusal was based on a city ordinance prohibiting the issuance of a liquor license to a store "located outside the business district of the city."

Appellant brought mandamus seeking to compel the issuance of the license. After issuing a preliminary order, the trial court held an evidentiary hearing. Appellant claimed that the ordinance upon which the board relied was too vague and indefinite to be valid, but that if the ordinance was valid, the location of its store was within a "business district". The trial court held the ordinance valid and found that appellant's proposed location was outside a business district. The relief sought was denied.

On appeal appellant contends that the trial court erred because the ordinance limiting the issuance of license to places within "the business district of the city" is unconstitutionally vague and indefinite and thus susceptible to arbitrary and unreasonable enforcement.

Mandamus is a proper action to obtain a liquor license which has been wrongfully withheld. State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73, 80 (Mo.App.1968). To be successful in mandamus relator must establish a "clear and unequivocal" right to the relief requested. State ex rel. Jay Bee Stores, Inc. v. Edwards, 636 S.W.2d 61, 62 (Mo. banc 1982).

A relator may appeal from an adverse final determination in mandamus if a preliminary order was issued. See Hunter v. Madden, 565 S.W.2d 456, 457 n. 1 (Mo.App.1978). On appeal mandamus is reviewed as other nonjury civil matters. State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 475 (Mo.App.1972).

Under its ordinances, Salem provides that liquor can only be sold if a license to sell it is granted by the Board of Aldermen. The ordinance which respondents say prevents appellant from being entitled to a license states:

No licenses shall be issued for the sale of intoxicating liquor or nonintoxicating beer at retail in the original package where the place of such business sought to be licensed, according to the application for such license, is located outside the business district of the city.

There is no definition in the ordinances of Salem defining or describing "the business district of the city". Respondents' brief states that there are two separate business districts in the city, both of which have businesses that were issued liquor licenses. Salem has no comprehensive zoning plan. The transcript of testimony at trial indicates that the aldermen "accepted and adapted" a "Comprehensive Community Plan" in 1971. In 1977 the Board of Aldermen made "changes" to the plan. Apparently appellant's store was to be located in an area designated on the plan as "single family residential".

When reviewing an ordinance we start with the presumption that it is valid. Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 518

Page 777

S.W.2d 11, 16 (Mo.1974). That presumption is rebutted if the ordinance is unreasonable or vague. Id. See also 5 McQuillin, Municipal Corporations, § 15.24 (rev.3d ed. 1981). An ordinance under the police power for the general welfare must be sufficiently definite "to provide those charged with its administration with a clear standard which operates uniformly and avoids arbitrary enforcement." City of Independence v. Richards, 666 S.W.2d 1, 7 (Mo.App.1983).

An ordinance which forbids or requires the doing of an act in terms so vague that persons of common intelligence must guess at its meaning and would differ as to its application, is void for vagueness. Ferguson Police Officers Ass'n v. City of Ferguson, 670 S.W.2d 921, 927 (Mo.App.1984). The void for vagueness doctrine applies to civil as well as criminal matters. Id.

A city has broader powers to limit or restrict those selling liquor than those engaged in other businesses. See § 311.220.2, RSMo 1978; State ex rel. Payton v. City of Riverside, 640 S.W.2d 137, 140-141 (Mo.App.1982); State ex rel. Kopper Kettle...