84 Mo. App. 11 | Mo. Ct. App. | 1900
A. D. Hill and ten other alleged citizens of Dexter, Stoddard county, Missouri, at the relation of the state presented their petition to the Dexter Circuit Court, praying that a writ of certiorari issue to the appellants, who are justices of the county court of Stoddard county, commanding them to bring up the record of their proceedings, by which John E. Bracken was granted a license to keep a dramshop in said town. The substantive allegations of the petition necessary to be stated in this opinion are: That the city of Dexter is a city of the fourth class and contained less than two thousand inhabitants; that petitioners are resident taxpaying citizens of said city; that requests had been made to both the Attorney-General of the state and to the prosecuting attorney of Stoddard county, to prosecute a writ of certiorari to revoke the license of Bracken, and that both had refused to do so, or to permit the use of their names in the prosecution of the writ; that the license granted ta Bracken was to keep a dramshop for one year, to be issued in periods of three months if desired.
1. Because said writ was improvidently issued.
2. Because plaintiff’s petition in the cause praying for the issuance of such writ does not state faets sufficient to authorize this court to review the action of defendants or the exercise of their judicial discretion in the matter complained of by relators.
3. Because relators do not show by or upon the face of their said petition that they have or possess any right to require defendants to submit their action in the behalf complained of to review by this court.
4. Because relators have no legal right to prosecute this action.
5. Because it does not appear by or upon the face of the petition by the allegations therein contained, or by reasonable intendment therefrom that these relators have suffered any special wrong, injury or grievance by the action of the defendants in this behalf, or that they will suffer any special wrong, injury or grievance by such action of defendants not common and general to all the citizens of Stoddard county.
6. Because it does not sufficiently appear from said petition that the public officers, whose duty it is to prosecute this action, have refused or declined to institute and prosecute said action.
1. Because it does not sufficiently appear from the petition filed herein, or from any exhibits filed therewith that the city of Dexter is a city containing less than two thousand inhabitants.
9. Because the petition on its face shows that relators were guilty of gross negligence and laches in applying for said writ.
*16 10. Because upon the whole showing of relators the writ should not have been granted.
The motion to quash was overruled, whereupon the defendants filed a duly authenticated copy of Bracken’s application for a license, the petition purporting to be signed by a majority of the taxpaying citizens and guardians of minors of the city of Dexter, asking that a license be granted to Bracken and the bond of Bracken as a dramshop keeper, together with a certified copy of the order of the county court granting the license, as and for a return to the writ. No answer was filed putting in issue any of the facts alleged in the petition, nor was there anything alleged in the return denying any of the facts recited in the writ of certiorari. The defendants rested their defense on the regularity and sufficiency of the proceedings of the county court after the overruling of their motion to quash and did not attempt to put in issue any of the allegations of the petition, which were dehors the record of the county court. The circuit court adjudged the order of the county court granting the license to be in excess of the jurisdiction of that court and quashed its proceedings and the license. Defendants have brought the cause here by writ of error.
Eor a reversal of the judgment plaintiffs in error contend, first, that the petition fails to show that the relators have any legal capacity to sue out the writ, and second that the proceedings of the county court and the order granting the license are regular and not in excess of the jurisdiction of the county court. The petition alleges that defendants in error are taxpaying citizens of the city of Dexter; that both the Attorney-General of the state and the prosecuting attorney of the county had refused to permit the application for the writ to be made in their names.
I. In State ex rel. v. Heege et al., 37 Mo. App. 338, an application for a writ of certiorari to bring up the pro
H. Bracken’s application and the petition for license were in proper form and the petition purports to be signed by the requisite number of taxpaying citizens and guardians of minors owning property in the city of Dexter. The order granting the license recites the finding of all the facts in favor of Bracken necessary to warrant the county court to grant the license. After finding these facfs the order continues as follows: “It is therefore ordered by the court that the said John E. Bracken be and he is hereby granted a license to keep a dramshop at his stand aforesaid for a period of one year from this date; that he pay a state license tax of one hundred dollars and a county license tax of five hundred dollars and an ad valorem tax on his stock at the same rate as is paid by merchants upon merchandise; that his bond and statement as such dramshop keeper be approved, and that license be issued in periods of three months if desired.” Section 2993, Revised Statutes 1899, limits the period for which a dramshop license may be issued to six months. The order granting the license for one year therefore exceeded the jurisdiction of the county court, and