Kochtitzky v. Herbst

140 S.W. 925, 160 Mo. App. 443, 1911 Mo. App. LEXIS 657

• Court: Missouri Court of Appeals
• Decided: November 7, 1911
• Status: Published

Opinion

NORTONI, J. —

This is a suit in equity, the object and purpose of which is to set aside a judgment of the county court by which a dramshop license was granted to defendant.' After hearing’ the evidence, the court found the issue for plaintiff and decreed the relief prayed for. Prom this judgment defendant prosecutes the appeal.

It is averred in the petition, and it appears in the case, that plaintiff is a property owner and, as such, an assessed, taxpaying citizen in the block in which defendant maintains his dramshop in Cape Girardeau. The suit proceeds on the theory plaintiff is an interested party whose legal rights have been invaded through the action of the county court in granting a dramshop license to defendant in such block, and the petition avers that he is without an adequate remedy at law, for the reason no appeal is allowed by statute from proceedings had in the county court under which dramshop licenses are granted and that the remedy by certiorari is of no avail here because the record of the county court in the dramshop proceeding is complete on its face.

About the middle of September, defendant filed with the county court of Cape Girardeau county his petition, signed by a number of taxpaying citizens owning property in the block or square in which his proposed dramshop was to be located, and prayed that such court issue to him a dramshop license thereon. The application was filed during the August term of the court, and was passed until the regular November term thereof, when it was favorably acted upon and the dramshop license issued to defendant in accordance with the statute. The petition prayed, and the court ordered, the dramshop license issued, permitting defendant to open and conduct a dramshop on Lot 51, Block 10, Range E in the city of Cape Girardeau, Missouri. Cape Girardeau is a city • possessed of more than 2000 inhabitants and by virtue of the statute (Sec. 7201, R. S. 1909), the county court is authorized to grant a dramshop license upon the petition of a majority of the assessed, taxpaying citizens and guardians of minors owning property in the block or square in which the dramshop is to be kept. By an act of the General Assembly of Missouri, approved February, 1857, the boundaries of the city of Cape Girardeau were extended so as to include the territory where defendant’s dramshop is situate, and in the year 1858 a new city map was drafted by authority showing the subdivision of certain out-lots within the extended boundaries into blocks, lots, streets, alleys, etc. This map was duly filed in the office of the recorder of that county September 6, 1858. Thereafter, in 1869; the city was re-surveyed by Nicholas Gonner, who presentecl to the council a map with the profile of the grades of the several streets included within the new limits, which was duly recorded in Plat Book No. 1 of Cape Girardeau, certified, etc. This map was adopted by the city council by Ordinance 209, approved on the 4th day of January, 1870, as correctly designating and marking out the streets, alleys, etc., therein indicated. This map, so revealed in the records of the county, covers a block of ground consisting of about twenty acres, which is bounded on the north by Washington avenue, on the east by Pacific street, on the south by Harmony street, also known as the Cape Girardeau and Jackson gravel road, and on the west by Henderson avenue. All of these streets are open, traveled, public thoroughfares, and the controversy here involved proceeds from the fact that certain cross streets designated in this map are not open, traveled streets but, in other words, are designated as such on paper only. This territory so bounded by the four open, public streets above named contains within it eleven city blocks or squares, according to the face of the map itself; that is to say, if all of the streets crossing this territory from Washington avenue on the north to Harmony street, or Cape Girardeau and Jackson gravel road, on the south, and from Pacific street on the east to Henderson avenue on the west were either dedicated streets or were open and traveled thoroughfares, eleven city blocks would be contained within the large square above mentioned. Though it appears eleven city blocks or squares are thus revealed on the recorded map or plat of the city of Cape Girardeau, the several cross streets therein mentioned have never been open, and there is naught in the record suggesting that those streets were ever dedicated by the owner of the land over which they are marked out. Lot 51, on which defendant was granted a license by the county court to open and maintain a dramshop, is parcel of the block of ground bounded on the east by Pacific street, on the south by Harmony street, or the Cape Girardeau and-Jackson gravel road, on the west by Benton street and on the north by Bellevue street. Of these streets so shown on the plat, Pacific street and Harmony street, or Cape Girardeau and Jackson gravel road, only are conceded to be open, public thoroughfares which have been traveled for many years. Benton street on the west of the block in which is situate Lot 51 and Bellevue street on the north of this same block are not open streets and it does not appear that they were ever dedicated as streets by the owner of the land, though they are shown on the plat as streets of the city of Cape Girardeau. Because of this fact, the two streets last mentioned are spoken of in the evidence as “paper streets” only. If those two streets — that is Benton street and Bellevue street —are in fact streets of the city, then there can be no doubt the county court properly granted the dramshop license to defendant; but if they are not streets, then probably the block or square in which defendant’s dramshop was situated consists in that larger portion of territory (about twenty acres), bounded on the north by Washington avenue, on the east by Pacific street, on the south by Harmony street,, and on the west by Henderson avenue; which large square contains, according to the map, eleven city blocks subdivided into lots adjacent to numerous streets and alleys which appear on the map. In the month of July, defendant filed an application in the county court for a license to open and conduct a dramshop on the same Lot 51 in Block 10, above mentioned, and afterwards, on the 6th day of August, during the August term of the court, it was acted upon favorably and the license prayed for granted on the theory^ that his petition contained a majority of the assessed, taxpaying citizens and guardians of minors owning property in the block or square of which Lot 51 is parcel. After the license was so granted on this application, but before it was actually issued, plaintiff and others protested thereat and induced the county court to set such order aside. The order of August 6th was set aside by the county court, it is said, because the members of the court were of opinion that the license was granted inadvertently, for the reason that the block or square of which Lot 51 was parcel was not a block or square within the meaning of the law. In other words, the court was of opinion that, because Benton street on the west of that block and Bellevue street on the north of it were not open, traveled thoroughfares, Block 10, of which Lot 51 was parcel, was not a block or square within the meaning of the dramshop law. Subsequently, in September, defendant filed his second application for a license to conduct a dramshop on Lot 51 of the same block and no remonstrance to this license whatever was filed. Thereafter, at its November term, the county court considered the matter and deterimined such Block 10, though bounded on two sides only by open public streets, and on the north and west by streets appearing on the plat, but not open, to be a block or square within the meaning’ of the law. On so determining this question, the application for a dram-shop license was found to be sufficient in point of qualified signers, and sustained. The court entered its judgment accordingly, which recites all of the facts essential to be found antecedent to granting such a license. Defendant’s dramshop^ license was granted and he opened the dramshop on such Lot 51, Block 10. After-wards, this suit, was instituted in the circuit court, to the end of setting aside the judgment of the county court which granted the license and to the end of canceling the license and restraining defendant from maintaining the dramshop on such lot.

According to the averments of the petition, no charge whatever is laid against defendant, but it is alleged the county court granted the license through fraud and misfeasance on its part. The grounds upon which the relief is sought may be ascertained by a perusal of the material part of that pleading, which is as follows:

“The said court desiring to favor said Herbst, knowingly, willfully, fraudulently and misfeasantly took cognizance of said application and petition, and illegally granted the said Herbst the dramshop license, in the following unlawful but original and unique manner.

“The said court formed an imaginary block surrounded on two sides by imaginary streets, which imaginary block comprised only about one-fourth, or one-fifth of the whole area or territory of the said block as hereinbefore described. And the court in determining whether a majority of the assessed, tax-paying citizens had signed said dramshop petition, counted only those who owned property in the said imaginary block which was in part surrounded by two imaginary streets, but the pleader is unable to give the names of the two said streets for the reason that said streets are fanciful and mere figments of the imagination of the said court. But the said streets so evolved from fancy, answered every purpose of their creation, fully as well as real boulevards could have done, in that they with Pacific street, and the Cape Girardeau and Jackson gravel road, formed a block in which by counting the illegal signers to said petition, the said applicant-had a majority and enabled said court to put its stamp of approval upon said petition, and grant defendant a license to keep a dramshop which he has established, and now maintains. That said court, refused to count any and all assessed, taxpaying citizens who owned property in said block outside of the little imaginary block so formed as aforesaid.

‘ ‘ That all the aforesaid novel and remarkable acts of said court in that behalf, were done knowingly and ■wrongfully, and for the purpose of ‘counting a majority’ in favor of said dramshop petition. That the said court thereupon willfully and wrongfully entered of record its judgment showing its jurisdiction of said matter, and all essential findings for the purpose of conferring upon it jurisdiction in. that matter, and found by the process and computation aforesaid, and entered of record its finding that said petition contained the signatures of a majority of the assessed, taxpaying-citizens and guardians of minors owning-property in the block or square in which defendant’s dramshop was to be kept.

“That all of the acts, findings and orders of said county court were and are illegal and in violation of the law and the rights of this plaintiff.

“That the said court by making and entering of record matters and finding in that behalf, left plaintiff without any remedy at law by which to review and correct the errors committed, and the wrongs done aforesaid. That said acts of said court in approving said petition, in the manner aforesaid, and the ordering of said license was an act of misfeasance in office, wholly without authority of law and void, and should be set aside and for naught held.

“That neither an appeal nor writ of error will lie from said proceedings, and that said court did willfully, wrongfully and on purpose, with the intent of preventing the same, so conduct, direct and record the proceedings had by them in said matter and cause, so as to prevent a review thereof, by certiorari, and thereby render such proceedings unavailing.

“That said dramshop conducted by defendant under his license aforesaid, by reason of its close proximity to plaintiff’s home and property situate in said block as aforesaid, damages plaintiff, injures his said property and the property of others in the same block similarly situated, and is a constant and continual source of annoyance, discomfort and loss to him and to them.

“Wherefore, the premises considered, plaintiff prays that said judgment of said county court granting said license, and its order approving said petition, be cancelled, set aside and for naught held, and the said dramshop license so granted to defendant as aforesaid be annulled and cancelled, and the defendant be enjoined and restrained from maintaining a dram-shop at said place and block under the license procured as aforesaid.”

The county court acts judicially in the matter of granting dramshop licenses, and from its. judgment no appeal is provided by the statutes. The writ of certiorari transfers to the superior court the record proper only in such proceedings, and if such record discloses all of the essential jurisdictional facts which the statute imposes, the duty upon the county court to ascertain and determine its judgment in respect of such matters is conclusive, except as to a direct proceeding to set it aside. [Burkharth v. Stephens, 117 Mo. App. 425, 94 S. W. 720; State ex rel. v. Fort, 107 Mo. App. 328, 81 S. W. 476.] The record of the county court touching the matter of granting the dramshop license to defendant is complete in all respects, and reveals that that court found as a fact his petition was signed by a majority of the taxpaying citizens and guardians of minors owning property in the block or square, of which Lot 51, where the dramshop is situate, is parcel. But this is immaterial here, except for the purpose of disclosing that no adequate remedy at law by means of the writ of certiorari exists; and it was therefore permissible for plaintiff to address himself to a court of equity.

No one can doubt the power or duty of a court of equity in a direct proceeding for that purpose to set aside and vacate a judgment obtained through fraud in the actual procurement of the judgment. The principle is well established and frequently acted upon. [Baldwin v. Davidson, 139 Mo. 118, 40 S. W. 765; Irvine v. Leyh, 102 Mo. 200, 14 S. W. 715, 16 S. W. 10; Black on Judgment (2 Ed.), sec. 321.] It is a proper proceeding, too, where the county court, through intentional wrong or fraud of the judges knowingly enters its judgment granting a dramshop license to one not entitled thereto. [See Burkharth v. Stephens, 117 Mo. App. 425, 94 S. W. 720.] But such judgment may not he set aside for mere error or mistake of the county court, however gross. Where the judgment is sought to be vacated for fraud as here, such fraud must be established; that is to say, it must be shown that the county court acted intentionally with a fraudulent view of accomplishing the wrong charged. As before stated, a mere error or mistake of judgment will not suffice. [Burkharth v. Stephens, 117 Mo. App. 425, 437, 94 S. W. 720.]

Though defendant’s petition was signed by a majority of the taxpaying citizens and guardians of minors owning property in the block of ground bounded by Pacific street on the east and Harmony street on the south, which are open thoroughfares, and Benton street on the west and Bellevue street on the north, which exist on the plat only, it appears beyond question that it was not signed by a majority of such taxpayers in the larger square bounded by the four open streets above mentioned. The statute (Sec. 7201, R. S. 1909) provides that it shall not be lawful for the county court to grant a license to keep a dramshop in a town or city containing 2000 inhabitants or more until a majority of the taxpaying citizens and guardians of minors owning-property in the block or square in which the dramshop is to be kept shall sign a petition asking for such license to keep a dramshop in such block or square. There can be no doubt that the statute employs the terms “block” or “square” as synonymous in their import, and that it contemplates a portion of the city inclosed by streets, whether occupied by buildings or composed of vacant lots. It is to be conceded that a block or square is a portion of ground in a town or city surrounded by streets. [City of Ottawa v. Barney, 10 Kan. 270, 278.] But though such be true,- in order to establish the charge of fraud on the part of the county court, something more should appear than that it accepted the lesser block surrounded by two open streets and two “paper streets” on the official plat of the city as a block or square within the meaning of the statute, instead of accepting the larger one which contained abo at twenty acres; for such is entirely consistent with the view that it was but a' mistake or error of judgment. It is elementary that fraud is never presumed but must be proved, for it is a grave thing to even suggest it. [1 G-reenleaf on Evidence, sec. 80.] By the principles of the common law alone, such is the rule, for it is always presumed that persons conduct themselves in accordance with the precepts of good morals and in good faith; and especially is this true with respect to public officers in the discharge of their official duties, for the presumption of right conduct always attends such acts. Though express and positive proof of fraud is not required in every instance, and though it may be established by circumstances and collateral facts.affording reasonable inferences to that effect, something more than mere conjecture must appear in order to support the charge. Facts which give rise only to a suspicion of its existence are insufficient to sustain a judgment affirming-it. [Kilpatrick v. Wiley, 197 Mo. 123, 95 S. W. 213; Waddingham’s Exrs. v. Loker, 44 Mo. 132; Priest v. Way, 87 Mo. 16; South Missouri, etc. Lumber Co. v. Crommer, 202 Mo. 504, 101 S. W. 22.] There are no collateral facts or circumstances relied upon here to support the charge of fraud against the county court, and no charge of fraud whatever is laid against defendant. Indeed, the only charg*e is that against the county court, but it proceeds as though defendant received the benefits. The entire proof is that the county court accepted the lesser block or square, of which Lot 51 was a parcel and which block or square was bounded by two open-streets and two “paper streets,” as a block or square within the meaning of the statute and, so treating with the matter, it ascertained that the petition for license was signed by a majority of the taxpaying citizens and guardians of minors owning property in such block or square, and granted the license accordingly. The suggestion is, the court should have treated with the larger square instead of the smaller one.

It is argued that because the county court granted a license to defendant on the same theory on the 6th day of August theretofore and subsequently set its order aside as inadvertently made, the case should be treated as though it knew all the facts and intentionally granted the second license with a purpose to commit a fraud upon the law. We do not accept this view, for it appears that Bellevue street on the north and Benton street on the west of this block, though not open and traveled thoroughfares, were shown upon the official map of the city as streets, and the county judges no doubt, upon further consideration, considered and treated them as such in good faith. The judgment finally given is entirely consistent with honest error or a mistaken view. We may take judicial notice of the fact that the Constitution and statutes do not require the judges of the county court to be learned in the law and it is a matter of common knowledge that they are usually business men and farmers not educated according to the intricacies of that profession. Indeed, the proof in this case reveals that none of the members of the county court were lawyers, and it goes without saying that the question as to whether or not the two unopen but platted streets were in fact streets of the city was in all probability quite beyond their ken. Indeed, it may be that lawyers would entertain different opinions with respect to that matter, after consulting a plat which had been adopted by the city council as official and treated ás such since 1869, though the streets were not actually dedicated by the landowners. As to this, it should be said that there is nothing in the case tending to prove that the county court knew at the time the license was granted or at any time theretofore that the two streets, Bellevue and Benton, had never been dedicated to the public use, though it does appear they knew such streets were not open and traveled. The proof is conclusive, however, that the plat of Cape Girardeau, which was before them, showed such streets to have been-adopted by ordinance in 1870. The matter is one about which honest men, acting in good faith, may so easily err or commit a mistake that the proof scarcely suggests even a conjecture or suspicion of fraudulent intent. It is certain that the judgment of the county court is not to be set aside for mere mistake or error of judgment on the part of the court, and the proof is insufficient to support the finding of fraud. Other questions discussed in the argument are not suggested by the allegations of the bill and will not be noticed. The judgment should be reversed. It is so ordered.

Reynolds, P. J., and Caulfield, J., concur.