State ex rel. Schneider v. Stewart, KCD

• Decision Date: 27 December 1978
• Docket Number: No. KCD,KCD
• Citation: 575 S.W.2d 904
• Parties: STATE of Missouri at the relation of William A. SCHNEIDER, Individually and on behalf of himself and all other qualified voters of the City of Town and Country, Missouri and City of Town and Country, Missouri, a Municipal Corporation, Relators-Appellants, v. Robert G. STEWART, Acting Supervisor of Liquor Control of the State of Missouri, Respondent, and Malvern, Inc., a Missouri Corporation, Intervenor-Respondent. 29932.
• Court: Missouri Court of Appeals

Page 904

575 S.W.2d 904

STATE of Missouri at the relation of William A. SCHNEIDER Individually and on behalf of himself and all other qualified voters of the City of Town and Country, Missouri and City of Town and Country, Missouri, a Municipal Corporation, Relators-Appellants, v. Robert G. STEWART, Acting Supervisor of Liquor Control of the State of Missouri, Respondent and Malvern, Inc., a Missouri Corporation, Intervenor-Respondent.

No. KCD 29932.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1978.

Edward W. Sumner, Jr., Sumner, Hanlon, Sumner, Macdonald & Nouss, P. C., John J. Inkley, Jr., John E. Hilton, Clayton, for relators-appellants.

John D. Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

Merle L. Silverstein, Steven J. Stogel, Richard S. Bender, Rosenblum, Goldenhersh, Silverstein & Zafft, St. Louis, for intervenor-respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SHANGLER, Presiding Judge.

The relators Schneider and City of Town and Country brought their common law writ of certiorari to contest the jurisdiction of respondent Acting Supervisor of Liquor Control Stewart to issue restaurant-bar licenses for the sale of liquor by the drink to Malvern, Inc. as a Resort under § 311.095. The writ issued and the respondent Stewart certified to the circuit court the records upon which the licenses issued. The respondent Stewart then moved to dismiss the proceedings for want of status by relators to challenge issuance of the licenses. The motion was taken under advisement and then rendered moot in the circuit court by the determination of the writ of certiorari on the merits. The grant of licenses to Malvern thus continues in effect. In the course of proceedings, Malvern sought and was granted intervention as a party and now responds to the appeal of relators Schneider and City.

On appeal the relators contend that the record before the Supervisor, as a matter of law, failed to prove that Malvern was a Resort within any of the definitions of § 311.095, RSMo Supp.1975, ¹ and that the determination by the court under the writ that the grant of licenses by the Supervisor was not unlawful, arbitrary or capricious or an abuse of discretion was error. If we assume that traditional certiorari was open to and employed by the relators, ² we conclude nevertheless, that they were without interest to assert or, on objection, to continue the action. We determine also that, as to relator Schneider, the remedy by § 536.150 of the Administrative Procedure and Review Act precludes access to common law certiorari (LaFayette Federal Savings & Loan v. Koontz, 516 S.W.2d 502, 504(1-3) (Mo.App.1974)) which does not issue in the presence of other adequate remedy. State ex rel. Iba v. Mosman, supra, 133 S.W. l.c. 41; 14 Am.Jur.2d § 16, Certiorari.

The petition for common law writ of certiorari was brought in three counts: Count I by Schneider as an individual and as owner of property within the City; Count II by Schneider on personal behalf and for the benefit of all other qualified voters of the City; Count III by the City of Town and Country to quell a public nuisance from the unlawful sale of liquor within the municipality. The purport of Count II is that of a class action but the proceedings went to judgment without attempt by relator Schneider to prove the requirements of Rule 52.08(a) for a class action or by entry of order that the additional requirements of Rule 52.08(b) were met and that the action, thus, was maintainable. We deem Count II abandoned. State ex rel. Niess v. Junkins, 572 S.W.2d 468 (Mo.banc 1978).

The respondents Supervisor and Malvern iterate on appeal the substance of their motion to dismiss before the circuit court, that neither relator Schneider nor the City has sufficient interest in the grant of Resort licenses to accord status for judicial review of that agency decision. The relators contend that on principles of common law pleading to certiorari, as well as provisions of the Rules of Civil Procedure, a respondent who makes return to the command of the writ without complaint of want of capacity to sue makes appearance to the action on the merits and waives all attendant irregularity. State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631 (1925). The practice at common law (which persists) requires a respondent summoned by certiorari either to make return as mandated or to move quashal of the writ Before return. That derives from the function of the motion to dismiss as a demurrer which confesses all facts well pleaded and searches the record to determine whether the petitioner is entitled to the relief of the writ. State ex rel. Modern Finance Company v. Bledsoe, 426 S.W.2d 737, 740(5-8) (Mo.App.1968). We need not confront the continued validity of such a common law form in the presence of a code of Rules of Procedure promulgated to secure "the just, speedy and inexpensive determination of every action" (Rule 41.03) because, whether intended as a pristine common law action (as the pleadings and arguments of the relators suggest) or as a method for judicial review of an administrative determination under § 536.150 (as the judgment of the court and arguments of respondents suggest), the matter of standing does not relate to legal capacity to sue, a defense waived unless timely asserted (Rule 55.27(a)), but to the interest of an adversary in the subject of the suit as an antecedent to the right to relief. It is a matter, in a sense, jurisdictional in limine and so within the notice of a court, even on appeal, for dismissal. Briss v. Consolidated Cabs, 295 S.W.2d 391, 392(1, 2) (Mo.App.1956).

The want of adversary interest in the subject matter in suit operates to deny status for judicial relief, not only against judicial action, but against administrative action as well. 2 Am.Jur.2d, Administrative Law, § 575. The question as to whether a particular person has status to contest the administrative action becomes one of law and depends upon an amalgram of considerations: the nature and extent of the interest of the person who asserts status, the character of the administrative action, the terms of statute which enable the agency action, among them. The determination, ultimately, rests on policy as well as law so that which consideration among the several shall predominate to allow or deny status for judicial review depends upon the discerned legislative values. State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W.2d 669, 676(12-17) (banc 1956); Bank of Belton v. State Banking Board, 554 S.W.2d 451, 453(1), 456(4) (Mo.App.1977); In re St. Joseph Lead Company, 352 S.W.2d 656, 659(3) (Mo.1962).

The relator Schneider contends for status for judicial review by common law certiorari of the grants of Resort liquor licenses to Malvern. We have expressed conclusion that the proper remedy for that noncontested agency action was by the review provisions of § 536.150 of the Administrative Procedure and Review Act. We discuss the liminal question of status for judicial review because, whether by the method of statutory certiorari or the common law writ, the interest requisite for access to a court of review was in either case the same, and in either case absent.

The Liquor Control Law (Chapter 311, RSMo1969) vests the Supervisor with exclusive authority to determine whether an applicant for a license for sale of liquor at retail meets the qualifications of the statute. Section 311.210; State ex rel. Floyd v. Philpot, 364 Mo. 735, 266 S.W.2d 704, 710(4, 5) (banc 1956). The review provisions of that enactment (§ 311.700) accord to "(a)ny party" aggrieved by the final decision of the Supervisor judicial review to the circuit court. It is clear that the method of review delineated by § 311.700 is the only remedy available to a Licensee for review of the agency decision and precludes access to § 536.150 or any other provision of the Administrative Procedure and Review Act. Brogoto v. Wiggins, 458 S.W.2d 317, 318(2, 3) (Mo.1970). It does not follow, however, as respondents contend, that a person not a party to the application for license, but otherwise aggrieved by the final order of the Supervisor, has no recourse to the courts for infringement of right.

The requirement of Article V, § 22 of the Constitution of Missouri for direct review by the courts of final orders of an administrative agency ³ is made to depend upon whether the decision affects a private right, and not a private right of a Party. The Administrative Procedure and Review Act, which furthers the constitutional purpose, accords review to "Any person . . . aggrieved by a final decision in a contested case" (§ 536.100 ⁴, emphasis added) whether or not a party to the administrative proceedings (State ex rel. Pruitt-Igoe District Community Corp. v. Burks, 482 S.W.2d 75, 77(1) (Mo.App.1972); In re St. Joseph Lead Company, supra, l.c. 655) and for the review of a noncontested case (§ 536.150) also speaks in terms of Any person, not Party. These sections derive from the same constitutional authority and give effect to the single desideratum that All final administrative decisions which affect private rights shall be subject to direct review by the courts. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 357 (Mo.banc 1958).

Questions remain whether relator Schneider has the nominal and substantive interests (cognate, in this consideration) to assert common law certiorari to review the grant of liquor licenses by the Supervisor to a third party. A stranger to the record subject to review by certiorari, although not a party in form, may have the writ if he was a party in substance. State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, 272(1, 2) (Mo.banc 1948). The status of a relator for certiorari not a party to the original proceedings, therefore, depends upon an interest in the subject matter sought for review. A party in substance is one who...