State ex rel. Robinson v. Mayor of Aldermen

57 Mo. App. 192, 1894 Mo. App. LEXIS 168

• Court: Missouri Court of Appeals
• Decided: March 20, 1894
• Status: Published

Opinion

Bond, J.

— Relators sued out a writ of certiorari against the appellant to vacate and annul a license, granted by it to one Thomas White as dramshop keeper in the city of Neosho.

The proceedings of the board of mayor and aider-men, returned under the writ of certiorari, disclosed that there was a called session of the board to accept a petition for a dramshop; that an application for license as a dramshop keeper was made by one Thos. White, stating, among other things, the following:

“This applicant would respectfully submit his bond with securities, together with a petition of a majority of the resident taxpaying citizens in said block 3, praying this council to grant to the applicant license as a dramshop keeper.”

The taxpayers petition presented to said board was, to wit:

“To the Honorable Board of Aldermen of City of Neosho, Mo.

“We the undersigned resident taxpayers of block (3), McCord’s addition to the city of Neosho, Newton Co., would respectfully petition your honorable body to grant to Thos. White a license to keep a dramshop in said block, and we would hereby state that the said Thos. White is a law abiding, assessed, taxpaying, male citizen over twenty-one years of age.” (Then follows clivers signatures.)

The two sections of an ordinance referred to in relator’s petition for the writ were also returned, and were, to wit:

“Sec. 2. No license shall be granted to keep a dramshop, until 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, shall sign a petition asking for such license to keep a dramshop- in such block or square. Provided, however, if the board of aldermen shall be of the opinion that the applicant is a law abiding, assessed, taxpaying male citizen, twenty-one years of age, and the petition contains the proper names subscribed thereto "of two-thirds of the assessed taxpaying citizens and guardians of minors owning real estate therein, as shown by the last previous annual assessment and vote of the city in the block or square where such dramshop is to be kept, then the board of aldermen shall grant such license. Provided no minor shall be counted on said petition or against said petition.”

“Sec. 4. If the petition required by section two of this ordinance shall be signed by 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, as shown by the last previous annual assessment of the city, and shall be accompanied by a bond required by the last preceding section, and provided, however, that the board of aldermen shall be of the opinion that the applicant is a law abiding, assessed, taxpaying male citizen above twenty-one years of age, it shall be the duty of the board of aldermen to allow the applicant a license for six months to keep a dramshop as prayed for in the petition upon payment, of the amount of license levied thereon to the city collector as provided in the next succeeding section.”

The record of the meeting of the board was as follows:

“The board of alderman met pursuant to call of mayor. Present: mayor, clerk, attorney, marshal, and aldermen Osborn, Stewart, Early, Smith and Myers. Abbott, absent.

“Thos. White presents his application for a dram-shop license, which was read by the clerk and on motion accepted. When Mr. White presented his petition signed by taxpayers of block 3, McCord’s addition to Neosho, and upon canvassing same, it was found that Mr. Thos. White had at least two-thirds of the property owners of said block on said petition. A motion to grant Thos. Whife a license to.keep a dram-shop for a period of six months from October 18, 1892, was carried by the following vote: Osborn, Stewart, Early and Smith yoting aye; Myers voting no, Mr. Thos. White presents his bond for $2,000, signed by Isaiah Robinson and M. Eishel as sureties, which was on motion approved by the board.”

The evidence disclosed the declination of the attorney general and the prosecuting attorney of a request for the use of their official names in the bringing of this proceeding, and that the city of Neosho contains more than two thousand inhabitants.

Appellants offered to show by witnesses “that the list of names subscribed to Thomas White’s petition comprised at least two-thirds of the qualified, assessed, taxpaying citizens owning real estate in the block, city and county named in the petition.”

The evidence was excluded on respondents’ objection, to which ruling exception was saved.

The cause was then submitted to the court, which found the issues for respondents, and revoked the license granted by appellants, from which judgment .this appeal was taken.

Under the present statute it is not lawful “to grant any license to keep a dramshop in any town or city containing two thousand inhabitants or more, until a majority of the assessed taxpaying citizens, and guardians of minors owning property in the block or square in which the dramshop is to he kepi, shall sign a petition ashing for such license.” Acts of 1891, p. 128, sec. 8.

It is conceded by appellants that, if the question of compliance with the foregoing statutory requirement is to be determined from the face of the proceedings shown in the return of the board of mayor and aldermen of the city of Neosho to the writ of certiorari directed against it by the circuit court of Newton county, it must be held that the dramshop license issued by that body was without authority of law and void, since it nowhere appears in any part of the proceedings taken to secure the license that the statutory condition supra was met. .

Appellants, however, contend that the circuit court erred in excluding extrinsic evidence by parol, offered by them on the hearing of this writ for the purpose of showing that the petition for license as dramshop keeper was signed by two-thirds of the qualified assessed taxpaying citizens owning real estate in the block described in the petition.

We do not think, the circuit judge committed any error in excluding this testimony. The fault of appellant’s position is that it is based on a misconception of the nature and purpose of a writ of certiorari, when employed by a court of general jurisdiction to control the acts and doings of a special tribunal, not proceeding according to the course of the common law.

The ground of the right to this writ, in such cases, is the superintendence vested in the circuit court at common law, and in other superior, courts by the constitution and statutes, over the proceedings of inferior tribunals from whose decision there is no-right of appeal or writ of error.

The questions brought up for review are therefore whether or not the special tribunal had jurisdiction in the premises, or, having jurisdiction, whether or not it exceeded that jurisdiction in its judgment or decision. To this end the writ of certiorari is a direct attack upon the proceedings of the lower tribunal. Chicago Railway Co. v. Young, 96 Mo. 43; State ex rel. v. Moniteau County Court, 45 Mo. App. 387; State v. Schneider, 47 Mo. App. 669.

The fact that the writ of certiorari is given, when no writ of error lies and no appeal can be taken, demonstrates that no issues of fact or law, arising in the course of the proceedings before the special tribunal, are open for subsequent review; but that the decision of all these questions is intrusted to the judicial discretion of the inferior tribunal acting within the limits of its jurisdiction.

This conclusion results also from the nature of the return, which brings up only the proceedings of record in the inferior tribunal. Hannibal & St. Joe R’y Co. v. State Board of Equalization, 64 Mo. 294; House v. Clinton County Court, 67 Mo. 522; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. City of Kansas, 89 Mo. 34; State v. Police Commissioners, 14 Mo. App. 308, 310.

It is accordingly the law that the jurisdiction of inferior tribunals, when attacked by a writ of certiorari, must appear by some part of the record of their proceedings. State v. Schneider, 47 Mo. App. 669; State ex rel. Harrah v. Cauthorn, 40 Mo. App. 94; Zimmerman v. Snowden, 88 Mo. 218; Jefferson Co. v. Cowen, 54 Mo. 234.

The result is that the judgment herein is affirmed.

All concur.