State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert

• Decision Date: 17 January 1968
• Docket Number: No. 8687,8687
• Citation: State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73 (Mo. App. 1968)
• Parties: STATE of Missouri ex rel. KOPPER KETTLE RESTAURANTS, INC., Relator-Appellant, v. CITY OF ST. ROBERT, Missouri, a municipal corporation et al., Respondents.
• Court: Missouri Court of Appeals

Page 73

424 S.W.2d 73

STATE of Missouri ex rel. KOPPER KETTLE RESTAURANTS, INC. Relator-Appellant, v. CITY OF ST. ROBERT, Missouri, a municipal corporation et al., Respondents.

No. 8687.

Springfield Court of Appeals, Missouri.

Jan. 17, 1968.

Claude T. Wood, Richland, Scott R. Traylor, Springfield, for relator-appellant.

J. W. Grossenheider, Lebanon, for respondents.

STONE, Judge.

In this proceeding instituted in the Circuit Court of Pulaski County, relator Kopper Kettle Restaurants, Inc., sought a writ of mandamus to compel respondents, City of St. Robert, Missouri, its mayor, members of the board of aldermen, and city clerk, to issue a city license to relator, 'upon payment of the proper fee,' for sale of liquor by the drink. Relator's petition was filed on July 7, 1966; and, on the same date, an alternative writ issued. In due time, respondents filed their motion to quash the alternative writ and on the same date their return thereto. On November 28, 1966, the court entered an order sustaining respondents' motion, quashing the alternative writ, and dismissing relator's petition therefor. Following an unsuccessful 'motion for new hearing or in the alternative to set aside judgment,' relator appeals.

The principal points in relator's brief are (1) that 'the petition for a writ of mandamus and the alternative writ of mandamus contain facts sufficient to warrant mandamus, and by reason thereof the trial court erred in sustaining the motion to quash . . .' and (2) that 'Ordinance No. 61 of the City of St. Robert makes it mandatory for the Board of Aldermen to issue a license for the sale of liquor by the drink when all prerequisites have been complied with; and since the petition for the writ of mandamus alleged compliance with all prerequisites, the trial court erred in sustaining the motion to quash.' (All emphasis herein is ours.) In respondents' answering brief, the initial point is that 'the trial court did not err in sustaining respondents' motion to quash . . . because the writ does not allege in issuable form the facts necessary to show relator is entitled to the relief it seeks and the writ fails to state facts which if true would authorize its issuance and to which respondents can properly plead.' Hence the first issue, to which we now attend, is whether the propriety of the trial court's sustention of respondents' motion to quash the alternative writ should be determined upon the averments of that writ, standing alone and unaided, or upon the averments in both the writ and the petition therefor.

As counsel for respondents points out, the alternative writ is the first or basic pleading, ¹ occupying a position corresponding to that of the petition in an ordinary civil action, ² with the return taking the place of and standing as the answer. ³ Indeed, it has always been true in this jurisdiction (State ex rel. Hamilton v. Everett, 52 Mo. 89, 91), and still is (Rule 94.01; § 529.010), ⁴ that it is the alternative writ, and not the petition for the writ, to which respondents are required to make their return. All of this logically points to the conclusion that the alternative writ should, in its recitals, be self-sufficient and able to stand alone when attacked by motion to quash. And some of the earlier cases held that the alternative writ itself must state 'in an issuable form' (State ex rel. Hambleton v. Bolche, 89 Mo. 188, 191, 1 S.W. 234, 235) facts which show relator's right to the relief sought. ⁵ In other cases, it was said that the alternative writ 'should set forth all the matters stated in the petition' (State ex rel. Hathaway v. State Board of Health, 103 Mo. 22, 26, 15 S.W. 322) or 'should (contain), by way of recital, the allegations of the petition' (Bell v. County Court of Pike County, 61 Mo.App. 173, 176(2)); but, in each instance, the court nevertheless considered the allegations of the petition for the writ.

In ruling a motion to quash, which in effect is under our present practice a motion to dismiss for failure to state a claim upon which relief can be granted (State ex rel. Lovell v. Tinsley, 241 Mo.App. 690, 694, 236 S.W.2d 24, 26(1)) and was under our former practice 'a demurrer to the petition and writ' (State ex rel. St. Louis-San Francisco Ry. Co. v. Darby, 333 Mo. 1145, 64 S.W.2d 911(1)), our courts have, in most, if not all, of the later cases, looked to the petition for the alternative writ as well as the writ itself. Quite understandably, that has been done where respondent waives issuance of the alternative writ and the petition thus stands as and for the writ, ⁶ and also where 'the petition has been treated as the alternative writ.' State ex rel. Priest v. Gunn, Mo. (banc), 326 S.W.2d 314, 328. But the same practice has been followed in a broad variety of factual circumstances, where the motion to quash has charged that the petition for the writ did not state facts sufficient to constitute a cause of action against respondent. ⁷

In the instant case, one of the principal grounds of respondents' motion to quash was 'that the petition for the writ filed herein upon which the writ was imprudently issued states only conclusions of law and fails to state facts sufficient to authorize the issuance of a writ of mandamus.' With the pleadings in this state, we eschew the unnecessary and unrewarding task of undertaking to rationalize or reconcile, if indeed that be possible, the divers holdings on the question under discussion. Suffice it to say that the cases cited marginally in note 7 afford ample authority for our consideration of 'all facts well pleaded' (State ex rel. Foster v. Griffin, Mo.App., 246 S.W.2d 396, 397(2)) in both the petition for the alternative writ and the writ itself. State ex rel. and to Use of Markwell v. Colt, Mo.App., 199 S.W.2d 412, 414(1). Recognizing that, as respondents emphasize, their motion to quash did not admit mere conclusions of law stated in the petition or the writ (St. Louis-San Francisco Ry. Co., supra, 333 Mo. at 1148, 64 S.W.2d at 911(1); State ex rel. Lamkin v. Hackmann, 275 Mo. (banc) 47, 204 S.W. 513, 514(1)), we also bear in mind that relator was required to plead only ultimate facts and not evidence. State ex rel. Consolidated School Dist. No. 1, Mississippi and New Madrid Counties v. Jones, 320 Mo. (banc) 353, 358, 8 S.W.2d 66, 67; Sibert v. Litchfield & M. Ry. Co., Mo., 159 S.W.2d 612, 614(1); City of Lebanon v. Holman, Mo.App., 402 S.W.2d 832, 835(5).

Before leaving the question under discussion, we add the cautionary comment that the prudent practitioner undoubtedly would be well advised in mandamus proceedings to take care that the averments essential to relator's cause of action are included in the alternative writ which, from a practical standpoint, often may be appropriately accomplished by referring in the writ to the petition therefor, attaching a copy of the petition to the writ, and making the petition a part thereof. Rules 41.02 and 55.14; § 509.130; Crouch v. Tourtelot, Mo. (banc), 350 S.W.2d 799, 801(1).

From relator's petition, the alternative writ, and Ordinance No. 61 of respondent City of St. Robert, which was attached to and made a part of respondents' motion to quash and has been treated by all parties as properly for consideration on this appeal, we gather the following. In Section 1 of Ordinance No. 61, enacted on December 18, 1962, the board of aldermen of respondent city declared it 'necessary in order to maintain the peace, welfare and good government of the city, to limit the number of licenses for the sale of liquor by the drink' and ordained (a) in Section 2 that no by- the-drink license 'shall be granted in excess of ten such licenses except each increase in population to the extent of 250 persons over the 1960 population, as determined by the U.S. Government census, shall automatically permit one additional license to be issued as hereinafter provided' and (b) in Section 3 that any applicant for a by-the-drink license 'shall show to the satisfaction of the city board (1) that said person has the place of operation and (2) that said place of operation is ready to be opened for business and (3) the applicant must be the owner of real estate located in the City of St. Robert.'

Relator, which 'has leased restaurant and cocktail lounge facilities' in the Ramada Inn at St. Robert, averred that 'the population of the city has increased by more than two hundred fifty (250) since the last federal decennial census and by reason thereof, under the terms of the ordinance, at least eleven (11) licenses for sale of liquor by the drink may be issued and outstanding at one time'; that, having met 'all lawful conditions precedent to the issuance' of a by-the-drink license, relator had demanded issuance of such license to it at a meeting of the board of aldermen of respondent city on May 16, 1966; that, however, respondents had refused to issue such license on the ground 'that ten (10) licenses for the sale of liquor by the drink in St. Robert' were then outstanding; and that, in the stated circumstances, issuance of such license to respondent was 'not a discretionary matter' but 'merely a ministerial action.'

In its second principal point, relator asserts that 'Ordinance No. 61 . . . makes it mandatory for the Board of Aldermen to issue a license for the sale of liquor by the drink when all prerequisites have been complied with; and since the petition . . . alleged compliance with all prerequisites, the trial court erred in sustaining the motion to quash.' Countering, respondents argue that the ordinance 'shows on its face that the act sought to be compelled is a discretionary act and not a ministerial duty so madamus will not lie'; that, since the ordinance provides that by-the-drink licenses 'shall be issued to persons . . . no corporation or firm would be entitled to receive a license thereunder'; and that 'neither the petition for the writ nor the writ alleges (relator) has been injuriously...