State ex rel. Missouri Baptist Hospital v. Nangle
| Decision Date | 16 May 1950 |
| Docket Number | No. 27907,27907 |
| Citation | 230 S.W.2d 128 |
| Parties | STATE ex rel. MISSOURI BAPTIST HOSPITAL et al. v. NANGLE, Judge, et al. |
| Court | Missouri Court of Appeals |
William M. Fitch, St. Louis, Malcolm I. Frank, St. Louis, relators.
Morris A. Shenker, St. Louis, for respondents.
Relators seek by writ of certiorari issued out of this court to quash the judgment of the circuit court of the City of St. Louis in a certiorari proceeding in that court instituted by Camilla Robinson, as relator against Arthur H. Bader, excise commissioner of the City of St. Louis, in connection with the denial by the excise commissioner of an application by Camilla Robinson for a license to sell intoxicating liquors by the drink at an establishment or place of business at 911 N. Taylor Avenue, in the City of St. Louis.
On December 11, 1948, Camilla Robinson filed the application with the excise commissioner and attached thereto was a plat purporting to show the names of the property owners and the location of each owner's property which was within 200 feet of the place such intoxicating liquors were to be sold, as required by the city ordinances. There was also filed with the application what purported to be the written consent of a number of property owners to the issuance of the license.
On February 9, 1949, the Missouri Baptist Hospital and Alese Morris, claiming to be the owners of property within the 200 foot area, filed with the excise commissioner a written protest against the issuance of the license, and attached thereto a plat prepared by the Title Insurance Company of St. Louis purporting to show the property and the owners thereof within the 200 foot area. That denied the accuracy of the plat filed by the applicant, and further charged fraud in that a number of those who signed the consent to the license were not owners in good faith of the property applicant's plat showed them to be owners of, but such properties were conveyed to them without consideration merely for the purpose of making them appear to be qualified to sign such consent. Many other reasons were assigned by these protestants as to why the application should be denied, but such reasons become moot because the only question contended throughout the proceeding has to do with the question of whether the application was supported by the consent signatures of a majority of the owners and taxpaying citizens owning property within 200 feet of the proposed location where the sale of intoxicating liquors would be made.
On March 18, 1949, the excise commissioner made an order of record as follows:
'The above cause having come before the Excise Commissioner on the 18th day of March, 1949, upon a petition for a license to sell intoxicating liquor by the drink at retail at 911 North Taylor Avenue, testimony was submitted, and the Excise Commissioner having heard the evidence and duly considered the same, and being fully advised concerning the matter, hereby declines to approve said petition, pursuant to the authority conferred upon him by Ordinance 40630 of the City of St. Louis * * * That the petition of the applicant was not supported in writing by a majority of the assessed tax-paying citizens owning property within a distance of two hundred (200) feet of the location in which the applicant proposed to conduct a retail liquor business.
'Wherefore, it is ordered that the petition of the applicant for a license to sell intoxicating liquor by the drink at retail at 911 North Taylor Avenue be denied by the Excise Commissioner of the City of Saint Louis.'
Thereafter, the applicant, Camilla Robinson, instituted certiorari proceedings in the circuit court; the writ was issued and the record, files and proceedings, including the finding and order of the excise commissioner, were transferred to the circuit court for review thereof.
Thereafter, upon such review, and without evidence other than the record and files in the proceedings before the excise commissioner, the circuit court through and by respondents (here) entered a finding and judgment as follows:
'This cause having heretofore been heard on the 12th day of May, 1949, on the relator's petition for a writ of certiorari and on the respondent's return to the issuance of such writ, and upon the submission of all of the issues to this Court, and the Court having fully considered the same, the Court does herein find that the respondent acted arbitrarily and without justification in denying the relator's application for the issuance of a license to sell intoxicating liquors by the drink at 911 N. Taylor Avenue, in the City of St. Louis, State of Missouri, and that the said respondent erred as a matter of law in determining that the petition of the relator 'was not supported in writing by a majority of the assessed tax-paying citizens owning property within a distance of two hundred feet from location in which the applicant proposed to conduct a retail liquor business'. The Court further finds that the record before the Court indicates that a sufficient number of qualified property owners within a distance of two hundred feet from the property in question affixed their signatures and subscribed their consent to the petition of the relator, that these signatures were submitted to the respondent with the petition of the relator, and further that the relator has complied in all respects with the ordinance in such cases made and provided.
'Wherefore, it is ordered, adjudged and decreed that judgment herein should be and is hereby rendered in favor of the relator and against the respondent, and that the respondent Excise Commissioner of the City of St. Louis is hereby commanded and directed to issue forthwith to the relator a license for the sale of intoxicating liquors by the drink at 911 N. Taylor Avenue, in the City of St. Louis, State of Missouri.'
The case is now before this court by way of certiorari to review the record and judgment of the circuit court.
It has been said in many cases that the office of certiorari is to bring a record of the proceedings of an inferior court or tribunal before a superior court to determine whether it acted legally, and the object of the writ is to keep inferior courts or tribunals within their jurisdiction. Consequently, it does not serve the purpose of an appeal, and all that can be done under it is to either quash or refuse to quash the record of which complaint is made. State ex rel. St. Louis County v. Evans, 346 Mo. 209, 139 S.W.2d 967. And a person with personal interest in the subject matter of a proceeding may sue out a writ of certiorari for review of such proceedings, and anyone who is a party to such proceedings in either form or substance, so as to be concluded by determination thereof, is an interested person entitled to such writ. Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054. This is expressly recognized as to the issuance of liquor licenses in the following paragraph of St. Louis City Ordinance 40630, Sec. 11, viz.: 'Upon such hearing, the applicant shall be entitled to produce testimony under oath, and to be represented by counsel, and the Excise Commissioner shall have the power, on his own motion, to subpoena witnesses, and to take their testimony under oath pertaining to all matters connected with the petition of said applicant, and any assessed, taxpaying citizen owning, or any person occupying or conducting any business in any property within 200 feet of the proposed retail liquor store shall have the right to produce witnesses and testimony.'
The traffic in liquor is not a lawful business except as authorized by express legislation, and no person has the natural or inherent right to engage therein; such traffic is placed under the ban of the law, and it is, therefore, differentiated from all other occupations and is separate from the natural rights, privileges, and immunities of the citizen. State v. Wipke, 345 Mo. 283, 133 S.W.2d 354. A city license director, such as the excise commissioner in the City of St. Louis, exercises a judicial discretion in granting or refusing a retail liquor dealer's license. Mangieracina v. Haney, Mo.App., 141 S.W.2d 89.
In this case it became the duty of the excise commissioner to hold the hearing and to take testimony under oath 'pertaining to all matters connected...
To continue reading
Request your trial
-
State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert
... 424 S.W.2d 73 ... STATE of Missouri ex rel. KOPPER KETTLE RESTAURANTS, INC., ... Relator-Appellant, ... CITY ... 507, 181 S.W.2d 798, 802(1), 803(4); State ex rel, Missouri Baptist Hospital v. Nangle, Mo.App., 230 S.W.2d 128, 131(7); State ex rel. Bruno ... ...
-
State ex rel. Stoffey v. La Driere
...273 S.W.2d 776 ... STATE of Missouri, at the Relation of Virginia Boain STOFFEY, Relator, ... The Honorable ... Murphy, Judge, 359 Mo. 854, 224 S.W.2d 68; State ex rel. Missouri Baptist Hospital v. Nangle, Judge, Mo.App., 230 S.W.2d 128; State ex rel. Renner ... ...
-
Jordan v. City of Centerville
... ... No. 25548 ... Missouri Court of Appeals, Southern District, Division ... Thus, it is a municipal corporation. State ex rel. Casey's General Stores, Inc. v. City of ... State ex rel. Missouri Baptist Hosp. v. Nangle, 230 S.W.2d 128, 131 ... ...
-
State v. City of West Plains
... 9 S.W.3d 712 (Mo.App. S.D. 1999) ... State of Missouri, ex rel. Casey's General Stores, Inc., an Iowa Corporation, ... State ex rel. Missouri Baptist Hosp. v. Nangle, 230 S.W.2d 128, 131 (Mo.App. St.L.1950) ... ...