131 Mo. App. 638 | Mo. Ct. App. | 1908
(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
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 sec
“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.]
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
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.