Thе relators Schneider and City of Town and Country brought their common law writ of certiorari to contest the jurisdiction of respondent Acting Supervisor of Liquor Control Stewart to issue restaurant-bar licenses for the sale of liquor by the drink to Malvern, Inc. as a Resort under § 311.095. The writ issued and the respondent Stewart certified to the circuit court the records upon which the licenses issued. The respondent Stewart then moved to dismiss the proceedings for want of status by relators to challenge issuance of the licenses. The motiоn was taken under advisement and then rendered moot in the circuit court by the determination of the writ of certiorari on the merits. The grant of licenses to Malvern thus continues in effect. In the course of proceedings, Malvern sought and was granted intervention as a party and now responds to the appeal of relators Schneider and City.
On appeal the relators contend that the record before the Supervisor, as a matter of law, failed to prove that Malvern was a
Resort
within any of the definitions of § 311.095, RSMo Supp.1975,
1
and that the
*908
determination by the court under the writ that the grant of licenses by the Supervisor was not unlawful, arbitrary or capricious or an abuse of discretion was error. If we assume that traditional certiorari was open to and employed by the relators,
2
we conclude nevertheless, that they were without interest to assert or, on objection, to continue the action. We determine also that, as to relator Schneider, the remedy by § 536.-150 of the Administrative Procedure and Review Act precludes access to commоn law certiorari
[LaFayette Federal Savings & Loan v. Koontz,
The petition for common law writ of certiorari was brought in three counts: Count I by Schneider as an individual and as owner of property within the City; Count II by Schneider on personal behalf and for the benefit of all other qualified voters of the City; Count III by the City of Town and Country to quell a public nui-sanee from the unlawful sale of liquor within the municipality. The purport of Count II is that of a class action but the proceedings went tо judgment without attempt by relator Schneider to prove the requirements of Rule 52.08(a) for a class action or by entry of order that the additional requirements of Rule 52.08(b) were met and that the action, thus, was maintainable. We deem Count II abandoned.
State ex rel. Niess v. Junkins,
The respondents Supervisor and Malvern iterate on appeal the substance of their motion to dismiss before the circuit court, that neither relator Schneider nor the City has sufficient interest in the grant of
Resort
licenses to accord status for judicial review of that agency decision. The rela-tors contend that on principles of common law pleading to certiorari, as well as provisions of the Rules of Civil Procedure, a respondent who makes return to the command of the writ without complaint of want of capacity to sue makes appearance to the action on the merits and waives all
*909
attendant irregularity.
State ex rel. Davidson v. Caldwell,
The want of adversary interest in the subject matter in suit operates to deny status for judicial relief, not only against judicial action, but against administrative action as well. 2 Am.Jur.2d, Administrative Law, § 575. The question as to whether a particular person has status to contest the administrative action becomes one of law and depends upon an amalgram of considerations: the nature and extent of the interest of the person who asserts status, the character of the administrative action, the terms of statute which enable the agency action, among them. The determination, ultimately, rests on policy as well as law so that which consideration among the several shall predominate to allow or deny status for judicial review depends upon the discerned legislative values.
State ex rel. Rouveyrol v. Donnelly,
The relator Schneider contends for status for judicial review by common law certiorari of the grants of Resort liquor licenses to Malvern. We have expressed conclusion that the proper remedy for that noncontested agency action was by the review provisions of § 536.150 of the Administrative Procedure and Review Act. We discuss the liminal question of status for judicial review because, whether by the method of statutory certiorari or the common law writ, the interest requisite for access to a court of review was in either case the same, and in either case absent.
The Liquor Control Law [Chapter 311, RSMol969] vests the Supervisor with exclusive authority to determine whether an applicant for a license for sale of liquor at retail meets the qualifications of the statute. Section 311.210;
State ex rel. Floyd v. Philpot,
The requirement of Article V, § 22 of the Constitution of Missouri for direct review by the courts of final orders of an
*910
administrative agency
3
is made to depend upon whether the decision affects a private right, and not a private right of a
party.
The Administrative Procedure and Review Act, which furthers the constitutional purpose, accords review to
“any person .
aggrieved by a final decision in a contested case” [§ 536.100
4
, emphasis added] — whether or not a party to the administrative proceedings [State
ex rel. Pruitt-Igoe District Community Corp. v. Burks,
Questions remain whеther relator Schneider has the nominal and substantive interests [cognate, in this consideration] to assert common law certiorari to review the grant of liquor licenses by the Supervisor to a third party. A stranger to the record subject to review by certiorari, although not a party in form, may have the writ if he was a party in substance.
State ex rel. Stewart v. Blair,
The relator pleads only that the licenses to Malvern authorized by the Supervisor “ha[ve] caused said relator’s residence to become depreciated in value and said relator has thereby sustained damage by such unauthorized action.” That contention of injury — which rests on no proоf other than the assertion — is not sufficient to constitute Schneider a party in substance to the license proceedings. The question is one of aggrievement, whether the administrative decision adversely affects an interest the law protects.
Hernreich v. Quinn,
These principles, valid in the statement, are subject to variant considerations of policy, statute, administrative action, among others, which accord status for judicial review in one set of circumstances and withholds status in another.
State ex rel. Rouveyrol v. Donnelly, supra,
285 S.W.2d l.c.
*911
676[12—17]. The provision of Article V, § 22 that
all
final decisions of any administrative officer which are judicial or quasi-judicial and affect private rights shall be subject to direct review of the courts and the enactment of the Administrative Procedure Act to that purpose for
any person aggrieved
manifest a fundamental policy to facilitate status'for judicial review for injury from agency actiоn.
In re St. Joseph Lead Company, supra,
l.c. 659[3-5]. These enablements, however are subject to the method of review provided by law [
Wood v. Wagner Electric Corporation,
A licensee under the Liquor Control Law has only those legal rights granted by the license — including review by the method of § 311.700 for a party to the proceedings aggrieved by a final order of the Supervisor.
5
That remedy for review is mandatory and excludes access by an applicant-licensee to the Administrative Procedure and Review Act.
Brogoto v. Wiggins, supra,
l.c. 318. The restrictive procedure which confines a party to review by § 311.700 is an expression of the public policy which places the liquor traffic under the ban of the police power because of the threat to the public morals the occupation poses.
State v. Parker Distilling Co.,
A person not a party to the license proceedings does not come under the regulation of the Liquor Control Law and so stands diffеrently for review. A person not a party, aggrieved by the agency action, is not precluded by § 311.700 from access to the Administrative Procedure and Review Act. The relator Schneider, therefore, was entitled to the judicial review of § 536.150 upon demonstrated record that the grant of the licenses to Malvern directly affected an interest in a manner personal and distinct from injury to the public. The pleadings and proof by certiorari do not establish such an interest. The contention that the residence of relator Schneider was depreciated in value by the unauthorized grant of licenses by the Supervisor pleads an interest not direct, but quite remote, and an injury [so we assume] shared by all within the City. There lacks even pleading of such rudimentary facts as the locale of Malvern in relationship to the Schneider residence or how the activity of the licensee bears especially on the relator and the use of that property. We do not suggest such proof sufficient for
*912
the review status Schneider asserts, but only that the contention of interest for ag-grievement is altogether speculative. In terms of the aggrievement requirement of the Administrative Procedure and Review Act, the relator was in the position of a member of the public without special interest to contest the authority of the Supervisor. In terms of common law certiorari, the relator was not a party in substance to the administrative proceedings and so without status for review by that writ.
Cooper v. Hunt,
There remains determination of Count III of the petition brought by the City of Town and Country as common law certiorari to contest the legality of the Supervisor grants of licenses to Malvern. The law has developed, perhaps anomalously, that the provisions of § 536.150 of the Administrative Procedure Act [Rule 100.08] for the judicial review of a noncontested case do not apply — in the absence of express statutory authority — to accord status to a political subdivision of the state' [in this case, a school district] to dispute an underassessment of rеal property by a county board of equalization.
State ex rel. St. Francois County School District R-III v. Lalumondier,
We apply the Lalumondier rule to deny status to the relator City for judicial review under § 536.150 of the noncon-tested Supervisor grants of licenses to Mal-vern and assume that the common law cer-tiorari was the procedure open for review of these agency actions. We conclude, nevertheless, that the City was not a party in substance to the administrаtive proceedings and may not maintain the common law writ.
We acknowledge, as commentators suggest, that the special interest prerequisite to aggrievement, and so status for judicial review, subserves the notion of administrative finality whereby the actions of agencies, to whom the legislatures have confided the duty of government, shall be insulated from capricious attack. The rationale is expressed in F. Davis, Standing of a Public Official to Challenge Agency Decisions, supra, p. 165 (1964):
Whenever an administrativе decision or ruling is formally challenged in the courts, both its authenticity and reliability are exposed to doubt, and the agency in question may be seriously hampered in the discharge of its business. When such challenges can be reduced by restricting the number and classes of persons who can make them, the administrative process enjoys greater freedom from harass *913 ment. The imposition of a strict “standing” test to those who would seek to nullify or reverse administrative actions or decisions has the effect of limiting the numbеr of persons who can petition for such relief. The requirement also reduces the number of quarters from which attacks may be launched. In this sense the “standing” requirement contributes to that stability of government and reliability of rulings which the doctrine of administrative finality was meant to advance.
The commentators agree that since administrative action affects the function of government as well as the affairs of persons, the public interest is best served by a procedure which allows a political unit оr geographical subdivision of government
7
status to contest an agency decision which affects interests distinct from the body politic of the State at large. F. Davis,
Standing of a Public Official to Challenge Agency Decisions, supra,
pp. 173-4, 183-4; Cooper, State Administrative Law,
supra,
pp. 545 et seq.; K. Davis, Administrative Law Treatise, pp. 281 et seq. This is the sense of
In re St. Joseph Lead Company, supra,
and the intimation of
Hertz Corp. v. State Tax Commission,
Whether or not, in light of St. Joseph Lead Company, we must understand Lalu-mondier authoritatively to foreclose review by a subdivision of government from a non-contested order of an administrative body, remedy by traditional certiorari remains open to a party in substance to the deсision.
The relator City contends for certiorari on assertions that the grant of licenses by the Supervisor was unlawful because Mal-vern was not a Resort within § 311.095 and so' the sale of intoxicating drinks on those premises was a public nuisance subject to abatement within § 311.740 of the Liquor Control Law.
A city, to protect the health, safety and welfare of its citizens, has undoubted authority to quell a condition per se a public nuisance at the common law or declared so by statute.
Campbell v. City of Frontenac,
A liquor license regularly issued by the Supervisor is not subject to collateral impeachment. State ex rel. Collins v. Keir-nan, supra, 207 S.W.2d l.c. 53[4—11], The pleading of the City, although in the guise of common law certiorari to review the administrative decision to grant licenses to Malvern, asserts substantively the abatement of a nuisance by reason of noncompliance with § 311.095 of thе Liquor Control Law. This amounts to a collateral attack on the license, a function not allowed certio-rari, and a proceeding otherwise discountenanced by our law. State ex rel. Collins v. Keirnan, supra. We do not doubt that a *914 municipality has a unique interest, not shared by the populace of the state at large, to protect its citizens from dangers from the licentious use of premises for the manufacture or sale of intoxicating drinks — such to accord aggrievement for certiorari or other direct review of the administrative decision to license 8 — but the pleadings do not present such an interest. Nor, for that matter, do the pleadings assert facts of that certain threat of injury requisite for the injunction of a public nuisance under § 311.-740, the statute the certiorari pleads.
Count III fails to plead a justiciable controversy between the City and the decision of the Supervisor. The authority of a court in a common law certiorari review of administrative grant of liquor license is either to quash the writ or to quash the decision of the Supervisor.
State ex rel. Bruno v. Johnson,
Accordingly, the proceedings are remanded to the circuit court with directions to quash the writ of certiorari on all counts and as to аll parties, and as modified, the judgment is affirmed.
All concur.
Notes
. To the extent relevant, § 311.095 provides: “[RJesort means any establishment having at least forty rooms for the overnight accommodation of transient guests, having a restaurant or similar facility on the premises at least sixty percent of the gross income of which is derived *908 from the sale of prepared meals or food, or means a restaurant provided with special space and accommodations where, in consideration of payment, food, without lodging, is habitually furnished to travelers and customers . . .” еtc.
. The relators assert under a common law writ of certiorari. The writ issues to confine an inferior tribunal within the limits of a proper jurisdiction and to relieve a party from injury where there appears, as a matter of law from the record, that the inferior tribunal lacked, abused or was in excess of jurisdiction in the proceedings..
State ex rel. St. Louis Union Trust Co. v. Neaf,
The Administrative Procedure and Review Aсt [Chapter 536], § 536.150 [present Rule 100.08], on the other hand, accords judicial review by original writ of certiorari of an administrative decision not subject to administrative review [noncontested cases] where the administrative decision determines the legal right, duty or privilege of any person. The function of this statutory writ, however, is not confined to questions of jurisdiction or errors on the face of the record not otherwise reached by appeal
[Iba v. Mosman,
The judgment of the circuit court rendered in the form:
“[T]he Court finds that there is nothing in the record to indicate that this action on the part of the Acting Supervisor of Liquor Control was unlawful, arbitrary or capricious . [or] that he has in any way abused the discretion granted him by law”
suggests review under § 536.150 of the Administrative Procedure and Review Act [Chapter 536] rather than by traditional certiorari and miscegenates the two procedures.
. “All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, whiсh are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law . . [This provision has been redesignated Article V, § 18 effective January 2, 1979].
. The headnote to § 536.100 prepared by the revisor of statutes reads:
Party
aggrieved entitled to judicial review. The catchword
party
does not suit the subject matter of that section which, as enacted, entitles
any person
aggrieved by a final administrative decision to judicial review. The headnote of a statute is a mere convention, an indicium of statutory content as perceived by the revisor. It imports no Iegisla-five authority and does not affect construction of the statute.
Snow v. Hicks Bros. Chevrolet, Inc.,
The Missouri Administrative Procedure and Review Act derives from the model State Administrative Procedure Act which, in express terms accords and intends status for judicial review to any
person
aggrieved. Model State Administrative Procedure Act (1946) § 12(1); [Revised Model State Administrative Procedure Act (1961) § 15(a)];
Stephen & Stephen Properties, Inc. v. State Tax Commission,
. Other schemes for judicial review of agеncy action outside the Administrative Procedure and Review Act enlarge, rather than restrict, citizen access to the courts. For instance, an order by the Public Service Commission as to which telephone company competitor shall service an area may be reviewed under § 386.510 on the mere complaint of a customer or other local partisan interest even without proof of direct affect on any property right of the one who claims status for review.
State ex rel Summers v. Public Service Commission of Missouri,
. In
Kansas City v. Reed,
. The status recognized for a political or geographical unit of government is quite apart from any contended interest of a subordinate official to challenge the decision of a superior administrative board. The lack of status of such an official for judicial review in that capacity has been put to rest by
Kostman v. Pine Lawn Bank and Trust Company,
. As, for instance, where the grant of a liquor license results in an excessive number of such establishments compatible with the public health, welfare and safety.
Board of Police Commissioners v. Reynolds,