State ex rel. Gazzalo v. Hudson

• Decision Date: 28 November 1882
• Citation: 13 Mo.App. 61
• Parties: STATE OF MISSOURI, EX REL. J. GAZZALO, Relator, v. N. C. HUDSON, COLLECTOR, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 61

STATE OF MISSOURI, EX REL. J. GAZZALO, Relator,

v.N. C. HUDSON, COLLECTOR, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 28, 1882.

APPLICATION for mandamus.

Motion to quash sustained.

BROWN & HAMM, for the relator.

GEORGE W. BAILEY, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is a proceeding by mandamus, the object of which is to compel the respondent, who is collector of the city of St. Louis, to issue a dram-shop license to the relator. The questions we now have to consider are raised by a motion to quash the alternative writ.

1. The first ground of this motion is that the writ does not state facts sufficient to entitle the relator to the relief which he seeks. The writ states generally that the relator has complied with all the provisions of the statutes of the state, and of the Revised Ordinances of the city, relating to the issuing of dram-shop licenses. It is obvious that this general allegation is not sufficient, without more, to entitle the relator to the peremptory writ. It is too general in its terms, and falls within the rule of pleading, which makes any pleading bad which does not state the facts which entitle the party to the relief sought, but which states merely conclusions of law. “In the alternative mandamus and the petition, the relator should set forth the facts upon which he relies for the relief sought. The defendants should have the facts before them, so that they could either admit or deny them, or take issues on the facts stated, constituting the plaintiff's right to the relief required.” The State ex. rel. v. Everett, 52 Mo. 89. We must, therefore, look beyond these general allegations to see whether the petition otherwise states the facts which are necessary to entitle the petitioner to this relief. It states that the application of the petitioner to the collector for the license which he seeks “was accompanied by a petition signed by a majority of the bona fide householders, being the owners, lessees, and tenants of property in the block where it is proposed to locate said dram-shop, as set forth and required by Article II, chapter 37, of the Revised Ordinances of said city, and also as required by and under the statute relating to dram-shop license, in chapter 98 of the Revised Statutes of the state of Missouri.”

We do not take judicial notice of the Revised Ordinances of the city of St. Louis, but we may here assume what is stated in this writ, that they contain a provision empowering the collector to grant dram-shop licenses where the petition for the same is signed by a majority of the bona fide householders in the block in which the dram-shop is to be located and kept. But the ordinances of the city relating to this subject are subordinate to the laws of the state, by which the same subject is regulated; and it is not sufficient, to entitle the applicant to a license, for him to show merely that he has complied with the requirements of the ordinances of the city. He must also show that he has complied with the requirements of the laws of the state. Austin v. The State, 10 Mo. 591, 595.

The law of the state regulating the issuing of dram-shop licenses (Rev. Stats., sect. 5442) prohibits the granting of “any license to keep a dram-shop, in any city, or block or square in such city, incorporated town, or municipal township, until a majority of the tax-paying citizens therein shall sign a petition asking for such license to keep a dram-shop therein.”

It is perceived that it is quite possible to comply with the municipal ordinance, the provisions of which are recited in this writ, by procuring the signatures to a petition for a dram-shop license, of a majority of the bona fide householders, without its being signed by “a majority of the taxpaying citizens residing in the block.” For instance, there might be a large hotel in a particular block, in which many tax-paying citizens might reside with their families. They might have an interest in preventing the establishing of a dram-shop in the block; and yet, we apprehend, they would not be regarded as householders within the meaning of the municipal ordinance, though their signatures to such a petition would clearly be necessary, under the law of the state. As the alternative writ does not show a compliance with the law of the state in this particular, it is clearly defective, and it must for this reason be quashed.

2. But as this defect might possibly be cured by an amendment, or by a renewal of the application, we shall proceed to consider the more substantial question, whether this is a case in which the writ of mandamus can be awarded at all. And here we need do no more than state in general terms certain familiar rules with reference to the nature and uses of this writ. It lies only to compel the performance of a duty clearly enjoined by law. It lies only at the suit of a person who shows a clear right to the relief which he thus seeks to enforce. It does not lie where any other legal remedy is open to the relator. It does not lie against a public officer to command him how to act, unless the act sought to be compelled is ministerial in its nature, so that the law itself enjoins how the act should be done. If the act involves the exercise of a discretion, judicial in its nature, which the law has committed to the officer, this writ cannot be used for the purpose of controlling that discretion, or directing the manner in which it shall be exercised. Applying these principles to the case at bar, it follows that this writ cannot be issued in any event, unless it is the law in this state, that a person of good moral character who complies with the provisions of chapter 98 of the Revised Statutes, and also with the provisions of the Revised Ordinances of the city relating to the issuing of dram-shop licenses, is entitled to such license as a matter of right; and, as a corrollary of this proposition, unless when he has so complied with the Revised Statutes and Ordinances, the collector has no discretion to refuse the license.

In determining the first of these questions, we are guided by two controlling decisions of the supreme court. Austin v. The State, 10 Mo. 591; The State ex rel. v. Holt County Court, 39 Mo. 521. These decisions clearly hold that the right to keep a dram-shop in this state is not a legal right, but a municipal privilege; that the general rule is that the keeping of dramshops is unlawful--prohibited by the legislature on grounds connected with public morals and the public welfare; and that an exception to this rule is that the county court in any county may conter upon any person of good moral character this privilege, upon his complying with certain conditions prescribed by the legislature. The county court may do this, and they may not do it. The doing of it is the conferring of a privilege, not the granting of a right. It is within the sound discretion of the county court, where the statute has been complied with by the applicant, to confer or to withhold this privilege; and this discretion cannot be revised or controlled by any court having...