37 Mo. App. 338 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is a certiorari sued out in this court to remove to this court the record of the county court of St. Louis county in relation to the granting of a dramshop license to Henry Horch.
The respondents under the seal of their court have made a return of the record and proceedings in the matter referred to, as fully as it remains among the records, papers and files of their court. They further return that it is a fact, as stated in the relator’s petition, that a petition was presented to the respondents as such county court justices by the said Henry Horch on or about the-day of June, 1889 — purporting to be signed by a large number of the assessed tax-paying citizens of Central township, asking for the granting of a license to keep a dramshop in the town of Webster Groves in said township; “but as to whether the said petition was first filed with the clerk of said county court on the same or on a different day, or at the same or on a prior term from that on which the same was presented to or acted upon by the respondents as aforesaid, respondents have no knowledge other than as inay be disclosed by the files and records of their said court. The respondents deny that they acted upon the said petition upon the affidavit of the said Horch alone, or without examination or knowledge of the character or sufficiency of said petition, as alleged, and aver the fact to be that they acted upon the said petition only upon due examination and investigation, and after, as they thought, being fully advised in reference to the same; and that, being of the opinion that said petition was in proper form, and that it contained the names of a majority of the assessed tax-paying citizens of the township, they then,-and not till then, granted said petition, and ordered that said license issue upon the said Horch complying with the further requirements of the law.
The respondents have transmitted to this court the
On the back of this petition is an affidavit of the applicant for the license, which appears to have been made by filling up a. blank form, and which is as follows:
44 Henry Horch, being duly sworn, on his oath says that the foregoing petitioners comprise a majority of the tax payers of - in Central township of St. Louis county.
44 ( Signed), Henry Horch. ”
44 Sworn to and subscribed before me this third day of June, 1889.
“(Signed), W. C. Wengler,
“ County Clerk. ”
On the back of this petition is the following endorsement: “June3, 1889. Ordered license to be granted on compliance with the law. ”
44 Theo. Heege,
“ Pres. Justice. ”
The respondents have also returned to this court a certified copy of the order of their record granting said dramshop license. It is as follows:
*342
“In the county court of said county, on the third day of June, 1889, the following among other proceedings, were had, viz.:
Now come tax payers of Central township and petition the court to grant Henry Horch a license to keep a dramshop. at his stand in W ebster Groves for six months from the third day of June, 1889. Ordered that the license be. granted upon compliance with the law. Ordered that the dramshop bond of Henry Horch, in the sum of two thousand dollars, be and the same is hereby approved.
“ And thereafter, on Monday the tenth day of June, 1889, the following further proceedings in said matter were had, to-wit: Minutes of last meeting read and approved, except that portion in relation to Henry Horch’s dramshop petition, and it is ordered that the approval of said petition be continued until Monday June 17, 1889, for further hearing.
“And thereafter, on Monday, the seventeenth day of June, 1889," the following further proceedings were had in said matter: In the matter of Henry Horch’s dramshop petition, — it now appears to the court that, on the third day of June, 1889, a drámshop license was issued and granted to him by order of the court, and the same is therefore approved. ”■■■■■
The bond, with the approval of the presiding justice endorsed thereon, is also returned to this court with the other papers.
On the seventeenth day of June, 1889, a large number of “ assessed tax-paying citizens ” of Central township filed a rexnonstrance against, the proceeding which had been taken by the county court in issuing the said dramshop license. This remonstrance was predicated upon the following grounds:
*343 “1. The court, as we are informed and believe, was without authority in law to consider said petition, as filed on the third day of June, 1889, and is still without authority to affirmatively consider such petition.
“2. That said petition is not in law such as the court can lawfully affirm, in that it does not-contain a majority of the assessed tax-paying . citizens of said Central township, and, if granted, would be null and void.
• “3. That the confidence of the court has been imposed upon by .said petitioners falsely representing such petition as containing a majority of the assessed taxpaying citizens of said Central township : whereas it does not contain such majority, and the court has been thereby induced to consider the granting thereof, which, if effected, would be contrary to law, and subject the judges thereof to the penalties under the.law incident to their so doing.
“4. That the granting of said .petition would be without authority in law, and detrimental to the lawful rights and best interests of the citizens of said township. Touching the truth of all of which the undersigned pray to be heard and so inform the court.”
Accompanying this remonstrance was an exhibit which contained a list of two hundred and twenty-seven names of “non-assessed tax payers therein on said petition, and duplicated names, as appears from assessor’s books for the year 1889.” This exhibit contained two hundred and fifteén names which the remonstrance asserted did not appear upon the assessor’s books of .the county for the year 1889, as tax payers, though they did appear upon the petition for the dramshop license in question. It also contained twelve, names which the remonstrance asserted had been duplicated upon the petition for the dramshop license. This exhibit was supported by the following affidavit:
“We, the undersigned, make oath and say that we have since examined the names contained in the petition*344 aforesaid, with the last said county assessor’s book for the said Central township, to-wit, the year 1888, and find that said petition contains the names heretofore attached, aggregating the number of two hundred and fifteen names, who do not appear as assessed tax payers of said Central township, and, also, the names of twelve assessed tax payers therein as duplicated on said petition, as per exhibit “A.” herewith filed. And further find thereon the further names to the number of fifty-three by us illegible. And do further find from a personal examination of said assessor’s book for Central township, being the latest assessment of said township, that there are in said Central township a total of twenty-five hundred and seventy-three assessed tax payers, real and personal, of whom there are fourteen hundred and fifty-three personal property assessed tax payers (citizens); and that the number of assessed personal tax payers on said petition, as taken from said assessor’s book, are four hundred and thirty-three, out of the whole number of petitioners thereon, to-wit, six hundred and sixty petitioners.”
This affidavit, apparently drawn with the intention of being sworn to by several persons, was sworn to by Gf. A. Moody alone.
This application was argued at the bar on the day before the final adjournment of the term by counsel for the relators, by the prosecuting attorney for the county court justice, and by counsel for Mr. Horch, the licensee. We have only time to indicate briefly the conclusions at which we have arrived :—
I. The first question is whether a proceeding of this kind can be prosecuted in this court at the relation of the assessed tax-paying citizens, or whether it is not essential that it should be prosecuted at the relation of the attorney general of the state or of the prosecuting attorney for St. Louis county. The petitioners came into court and asked special leave of court to institute this proceeding in the name of private assessed taxpaying citizens of the township. They stated in their
III. The next question is whether there has been any application in writing to. the county court within the meaning of section 5488 of the Revised Statutes, as amended by the act of March 24, 1883, known as the Downing law. Laws of 1883, p. 86, sec. 1. By this section it is provided: “Applications for a license as a dramshop keeper shall be made in writing to the county court, and shall state, specifically, where the dramshop is to be kept; .and if the court shall be of opinion that the applicant is a person of good character, the court
IV. But the next point is fatal to the application. The application is made by "tax papers of Central township in St. Louis county.” The statute recites: “It shall not be lawful for any county court in this state, or clerk thereof in vacation, to grant any license to keep a dramshop in any town or city containing two thousand, five hundred inhabitants or more, until a majority of the assessed tax-paying citizens 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 in such town or city; nor in any city containing less than two thousand, five hundred inhabitants, nor in any incorporated town or municipal, township, until a majority, both of the assessed tax-paying citizens therein, and in. the block or square in which the dramshop is to be kept, shall sign a petition asking for such license to keep a dram-shop therein, which said petition shall be filed in the office of the clerk of the county court, and by said clerk
It is a familiar principle, .touching the jurisdiction of inferior tribunals which do not act according to the course of the common law, that their jurisdiction must appear on the face of their proceeding, otherwise it will be held that they have acted without jurisdiction. State ex rel. v. Police Commissioners, 14 Mo. App. 297, 310, and cases there cited. It is a principle constantly acted upon, in superintending these inferior tribunals,
Y. We might stop here, but another interesting and important question is presented by the record. Section 4 of the act of 1883, as above quoted, recites that “ said petition shall be filed in the' office of the-clerk of the county court, and by said clerk laid before the court at the first term thereafter.” In this case it does not appear to a certainty on what day this petition was filed with the clerk of the county court, or that it was ever filed with such clerk. It contains no file mark by the clerk, which is the usual evidence of the date of a paper being filed with the clerk; though the remonstrance of June 17, and the exhibit filed with it, do contain the clerk’s file mark. Neither does the record of the county court, granting the dramshop license as above set out, recite that the petition was filed with the clerk on any day before the May term of the county court at which it was acted upon by the court. The question for decision under this clause of the statute is whether the statute is merely directory or whether it is mandatory. We are of opinion that it is mandatory. We think that it means what it says, and that, in order to give the county court jurisdiction to grant .the license, a petition, conformable to the statute, must have been filed with the clerk of the court and presented to the court by the clerk at the next term after being so filed. We think that the plain object of the statute
YI. This suggests another question, which, though not necessary to our decision, deserves observation. When the remonstrance of the citizens' was presented on June 17, supported by the exhibit marked “A,” which included the affidavit of Mr. Moody, which affidavit exhibited a state of facts' which, if true, showed beyond question that the justices had acted illegally, in granting the license,’ without having before them a petition signed by a majority of the “ assessed tax-paying citizens of the township,” they refused to- reconsider their action, and, according' to their record above recited, placed their refusal upon the apparent ground
The judgment of the court is that the order of the county court of the- county of St. ■ Louis, entered on June 3, 1889, and approved by said court on June 17, 1889, granting to Henry Horc-h a license to keep a dram-' shop in Webster Groves for six months from the third day of Jone, 1889, be reversed, quashed and annulled.