State ex rel. Schade v. Russell

110 S.W. 667, 131 Mo. App. 638, 1908 Mo. App. LEXIS 485

• Court: Missouri Court of Appeals
• Decided: May 12, 1908
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — Jackson is a city of the fourth class and section 5978 of the statutes (1899) relating to such cities, says the mayor and board of aldermen shall have power and authority to regulate all licenses and levy and collect the license tax on dram-shops. In the exercise of this power, ordinances, of which we have recited the portions relevant to the present proceeding, were enacted by the mayor and board of aldermen of Jackson to regulate the granting of saloon licenses. All the requirements of those ordinances, as well as of the statutes of the State relating to the granting of dramshop license, must he taken to have been complied with by relator, provided his application was accompanied by a petition containing the proper number of eligible signers. The alternative writ alleges full compliance with both statutes and ordinances and these allegations stand untraversed exeépt the one asserting the sufficiency of the petition. We first inquire Avho is to determine its sufficiency, and find the ansAver in sections 5900, 5951, 5956 and 5978 of the Refused Statutes of 1899. The effect of those sections is to entrust to the mayor and board of aldermen the poAver to regulate the granting of dramshop and other licenses, and authorize said officials to exercise the power, as they do most other poAvers, by ordinance. The sections provide that the mayor’s part in the passage of all ordinances, and hence of those regulating licenses, shall consist in presiding over the board without voting, except in case of a tie, and approving ordinances passed by the board by signing them, or disapproving them by withholding his signature, and thereby preventing them from taking effect until re-enacted by a vote of two-thirds of the members of the board.

In vieAV of those statutory provisions and of the ordinances enacted thereunder, Ave hold it was the duty of the board of aldermen to pass on the sufficiency of relator’s petition, Avithout participation by the mayor, except in the way of advice or protest, unless there Avas a tie vote. The ordinances previously passed by the city regulating dramshop licenses, explicitly provided that applications for such licenses should be made to the board of aldermen and accompanied by the proper petition; if the petition contained two-thirds of the eligible signers the board should grant the license, and also, the board should pass on the applicant’s bond. We remark, in passing, that the mandatory provision for a license when the petition is signed by two-thirds of the property-OAvners, was drawn in analogy to section 2993 of the statutes; and in truth, the ordinances throughout followed the statutes. How;ever our point just now is, that all their clauses contemplate a decision by the board of aldermen of whether the petition is properly signed and the applicant has complied with the other conditions precedent to obtaining a license. The entire matter is remitted to the determination of the board. This being true, the next inquiry is, what did the board decide regarding relator’s application and petition? By reading the order it will be seen the board expressly found the petition was signed by a majority of the taxpaying citizens and guardians of minors owning property in the block where the saloon was to be kept, and that, in the opinion of the board, the applicant was an assessed taxpaying citizen over twenty-one years of age. This was a finding of the requisite facts to give the board jurisdiction to act on the application and to authorize it to order a license to be issued to him, as was done. The provisions of the ordinances of the city as to the application and petition being in analogy to the statutes relating to dramshop licenses, those cases are in point which determine how a county court acquires jurisdiction of an application for a dramshop license and what is prerequisite to granting the application. As to the essentials to the exercise of jurisdiction see citations under section 2997,. 2 Mo. Ann. Stat. In truth respondent does not contend on any other ground than the insufficiency of the petition, that the board was without power to grant the license, though he does contend, in addition, the order for the license was invalid because it omitted to show the board used the last annual assessment to determine who were qualified signers; arguing that section 2993 of the statutes makes said list the sole evidence on the question. Neither is the contention put forward that the granting of each particular license to dramshop keepers, hawkers, peddlers and the other classes of persons enumerated in section 5975 of the statutes, is a legislative act to be done by ordinance, or resolution equivalent thereto, with the mayor acting as part of the Legislature and approving or vetoing according to his judgment. The proposition insisted on is not that the mayor must sign the order of the board for a license in order to validate the order; for it seems to be conceded his signature is not essential to its validity. But it is essential to the validity of the license issued by the clerk pursuant to the order; and respondent insists he has a discretion to refuse to sign the license and may justify his refusal by showing the board ordered it on an insufficient petition. We think the effect of the general ordinance Avhich had been adopted by the city of Jackson relating to saloon licenses, was to constitute the board of aldermen a tribunal clothed with authority to pass on the sufficiency of a particular application and petition, and that in doing this the board acts judicially instead of legislatively. This question of the character of the proceedings by a board of aider-men in granting dramshop licenses is decisive, not only against the right of the mayor to participate in the proceedings as being municipal legislation, but of the conclusiveness of the board’s action on the rights of the applicant. In an opinion by Judge Bland, wherein the subject was carefully examined, this court declared the decision by a board of aldermen of a fourth-class city, of whether an applicant for saloon license had complied Avith the law and entitled himself to a license was no less judicial than a similar decision by a county court or excise commissioner, which has always been regarded -as judicial. [Weber v. Lane, 99 Mo. App. 69, 71 S. W. 1099, and cases cited in opinion.] We adhere to said ruling as well supported by principle and precedent. After the board of aldermen of Jackson had found in favor of relator’s petition and qualifications, and had ordered a license to issue, he submitted Ms bond, the board approved it, he paid all fees, took the collector’s' receipt for same, the city clerk issued the license and said clerk and the collector signed it as the law provides. [R. S. 1899, sec. 5951.] The statute reads as follows:

“All license tax shall be regulated by ordinance, and no license shall be issued until the amount prescribed therefor shall be paid to the city collector, and no license shall in any case be assigned or transferred. Licenses shall be signed by the mayor and clerk and countersigned by the collector, and the clerk shall affix the corporate seal thereto.”

Under said section it was as much the duty of respondent, the mayor, to sign relator’s license, as it was the duty of the city clerk and collector. And we think in the instance of each of said officials, the duty was ministerial and not discretional — was intended not as an additional determination by them of relator’s right to a license, but as an attestation that one had been granted him. Respondent says he was justified in refusing to sign because the board had found erroneously there were sufficient competent signers to the petition. To uphold this contention without an averment of fraud in the conduct of the board, we must be prepared to say the truth of a judicial finding may be called in question collaterally; and this, of course, we will decline to say. If judicial proceedings could be thus collaterally challenged and annulled, every order of a county court or ■city council for license, and every finding of fact on which the order was based, could be reopened and the facts lying back of the record again examined. The law does not accept such a doctrine; but having lodged the power to find the facts in a body or tribunal which ■acts judicially, assumes its findings are true. [State v. Evans, 83 Mo. 319, 322; State v. Cauthorn, 40 Mo. App. 74, 99; State v. County Court, 45 Mo. App. 394; Cooper v. Hunt, 103 Mo. App. 9, 77 S. W. 403, and cases cited.]

Respondent’s refusal would stand on a very different footing if fraud was shown on the part of the board, especially in an equity suit. It might well be that such a finding, like any other judgment induced by fraud practiced in procuring it, would be vacated. This was held in a recent case where it was shown a county court fraudulently found the requisite number of petitioners had asked the granting of a dramshop license, and had refused to malee proper entries of record so as to enable the remonstrators to contest the matter by certiorari. [Burkharth v. Stephens, 117 Mo. App. 425, 94 S. W. 720.] The allegations of the present return go no further than to say the members of the board of aider-men were misled by the use of a slip of paper, without charging they were fraudulently imposed on by relator or any one else, or. acted from fraudulent motives. Indeed no accusation whatever is made against relator in connection with the findings, nor any accusation against the board, except omitting to consult the assessment list.

We might concede that if the record of the proceeding showed the board omitted to use the assessment list, its finding would not be conclusive; but though it was bound to find enough competent signers had petitioned for the license and to find the other conditions precedent existed, neither by statute nor common law was it required to recite, in its order, the evidence on which it found. [Lingo v. Burford, 112 Mo. 149, 155.] It suffices, in the absence of fraud and collusion, that evidence satisfactory to it, was utilized. This point was, in effect, determined in Cooper v. Hunt, 103 Mo. App. l. c. 18. To permit an inquiry into the evidence used by the board with a view to annulling its findings, if the evidence was incompetent, would be but a roundabout way of allowing a collateral attack on the action of a tribunal in a proceeding Avhich it was empowered to adjudicate.

Lastly, it is said the mayor of a city of the fourth class and governmental and municipal executive officers generally, cannot be controlled in the performance of official duties by the courts; and on this proposition we are cited to contrary decisions by the Supreme Court. [State ex rel. v. Meier, 143 Mo. 439, 45 S. W. 306; Albright v. Fisher, 164 Mo. 56, 67, 64 S. W. 106.] In the first case it was held, affirming the decision of this court (State ex rel. v. Meier, 72 Mo. App. 618) that the president of the council of the city of St. Louis might' be compelled by mandamus to sign an ordinance as a mere matter of statutory attestation, when he had no right to participate as a legislator in its passage. In the second case this decision was overruled in an opinion only remotely concerned with the point and dealing with the power of a circuit court to restrain the municipal assembly of St. Louis from passing a certain ordinance granting a street railway company the right to lay tracks over, a street, on the ground the requisite number of property-owners had not petitioned for the track. The judgment in Albright v. Fisher is exactly in point against the right of this court to inquire into the signatures to relator’s petition, but digressed in passing on the question determined in State ex rel. v. Meier, to-wit: the power to compel a city executive to perform a purely ministerial duty. Nevertheless if it stood as rendered, unqualified by later opinions, it well might be cited as a precedent for respondent. The opinion seems to lay down two reasons why courts may not control by mandamus a municipal executive or other officer who must sign ordinances, first; the Constitution distributes the powers of government into.three departments, executive, legislative and judicial, and forbids one department from entrenching on the others, except in instances expressly directed or permitted by the Constitution. Hence when an exception is asserted in favor of controlling an executive or legislative official by a writ from a court, the party demanding the writ must be able to put Ms finger on a constitutional clause allowing the exception. Secondly, that the signing of a hill by a mayor or other presiding officer of a municipality is a legislative act, inasmuch as municipal assemblies are part of the legislative department of the State, and the presiding officer of the assembly must exercise judgment in determining whether or not to sign an ordinance. In State ex rel. Abel v. Gates, 190 Mo. 540, 559. The Supreme Court appears to have rejected the doctrine of Al-bright v. Fisher, that municipal officers are not subject to judicial control in the exercise of ministerial powers, as it held a municipal assembly itself was subject to control by the courts in an instance where it. attempted to disguise a ministerial act under the form of legislation. The court adhered to the precise point in judgment in Albright v. Fisher, but went so far in opposition to the opinion therein, as to sustain the power of a circuit court to prevent the passage of an ordinance, which was really a contract pertaining to the ministerial and administrative functions of the city and not to its legislative functions. The court also denied the doctrine declared in Albright v. Fisher, that a municipal council is a portion of the legislative department of the State government and hence emancipated from control by the courts. We have no hesitation in saying that under the decisions of the Supreme Court as they now Stand, municipal officers, and particularly the executive officers of a municipality, may be charged with ministerial duties which they can be compelled to perform by mandamus. It -would be difficult to conceive any duty more ministerial than the one imposed on respondent to sign a license ordered by the board of aldermen. In litigation of this character, it has been ruled a county court may be compelled to grant a license to an applicant who has complied with the law and presents the requisite petition, and also that a city council may. [State ex rel. v. Ruark, 34 Mo. App. 325; State ex rel. v. Baker, 32 Mo. App. 98.] If the council, which exercises judicial functions in the matter, may be coerced by mandamus, as the case last cited holds, it would be strange if the mayor, who only exercises a ministerial duty, stood exempt from the writ and might refuse to sign a license. That a mayor is subject to judicial coercion in the discharge of ministerial duties, is the general doctrine of the courts, 26 Cyc. 280; citing, Dreyfus v. Lonergan, 73 Mo. App. 336; and see other citations in the notes. The exact point under advisement was determined by the Supreme Judicial Court of Massachusetts, in Branconier v. Packard, 136 Mass. 50. In said case it appeared a petition and application for license had been approved by the board of aldermen of Brockton, and a license had been granted by the board to Branconier ; but the mayor refused to sign it, though the statutes of the State require every license to be signed by the mayor and clerk. The court ordered the mayor to sign.

We have carefully gone over the various points, raised by respondent and are convinced they are without merit and that it was respondent’s plain duty to sign relator’s license. Hence a peremptory writ will be awarded.

All concur.