Weber v. Lane
71 S.W. 1099
Mo. Ct. App.
1903
Check Treatment
BLAND, P-. J.

It appears from the record in the cause that the action of a board of aldermen of a city of the fourth class, in respect to issuing or revoking dramshop licenses, was treated by the plaintiff’s counsel and the court as the exercise of a legislative function. We think this was an erroneous view of the function exercised by these bodies in respect to dram-shop license. The mayor and hoard of aldermen of cities of this class are given power to regulate and license dramshops. R. S. 1899, sec. 5978. Their proceedings in the exercise of this power must conform *80in every respect to the laws of the State in respect to-granting "state and county license to keep a dramshop. To obtain a dramshop license from a city of the fourth class the same steps -are required to be taken as are required to be taken to obtain a license from the county under the general laws of the State. The order of a county court granting a license to keep a dramshop is a judgment in favor of the licensee and the proceedings resulting in the. order are judicial. The State v. Evans, 83 Mo. 319; State ex rel. v. Higgins, 84 Mo. App. (St. L.) 531.

Freeman, in his work on Judgments (4 Ed.), in section 2, says a judgment is “the decision or sentence of the law pronounced by a court or other competent tribunal' upon the matter contained in the record. ’ ’

The 'Supreme Court in banc, in State ex inf. v. Fleming, 147 Mo. 1. c. 10, through Sherwood, J., defined a judgment to be “the decision by a court of competent jurisdiction upon a matter presented before it which involves a question of fact, or a question of law, or a compound question of both law and fact,” and in that case held that the determination of a county court that a majority of the taxable inhabitants of a town signed the petition to be incorporated as a city as provided by section 977, Revised Statutes 1889, makes the order thus incorporating the city a judgment and not simply an administrative or legislative act. This ruling was followed on a second appeal of the same case. State ex inf. v. Fleming, 158 Mo. 558.

In County Court of Callaway County v. Inhabitants of Round Prairie Township, 10 Mo. 679; Dunklin County v. The District County Court of Dunklin County, 23 Mo. 449; The State ex rel. School District v. Byers, 67 Mo. 706; State ex rel v. Higgins, supra, and numerous other cases that might be cited, it was in effect held that where an inferior tribunal was by statute entrusted with jurisdiction to exercise certain functions that required the ascertainment of the existence *81of certain facts, for instance, -whether or not- a petition upon which the tribunal was authorized to act was signed by the requisite number of qualified persons, the finding of the fact that the petition was so signed was the exercise of a judicial function. The decisions of the appellate courts of this State, without exception, treat the proceeding of a county court and excise commissioner in granting a dramshop license as judicial. The State v. Evans, State ex rel. v. Higgins, supra; The State ex rel. v. Heege, 37 Mo. App. (St. L.) 338; The State ex rel. v. Cauthorn, 40 Mo. App. (K. C.) 94; State ex rel. v. County Court, 66 Mo. App. (K. C.) 96; State ex rel. v. Higgins, 71 Mo. App. (St. L.) 180.

The board of aldermen of a city of the fourth class in passing upon an application for a license to keep a dramshop in such city'is required to act upon a like petition and to find the same facts, in regard to the qualifications of the applicant, as does the county court in a like proceeding for a state and county license to keep a dramshop, hence, if the act of the latter is judicial, so also must be the act of the former and in such a proceeding the board of aldermen is as much a judicial tribunal as is the county court.

But it is contended that the mayor and board of aldermen had no power to revoke dramshop license. No such- power was exercised or attempted to be exercised by them. The investigation ordered and made was with a view to regulate, not to revoke. The power to regulate dramshops is expressly conferred on the mayor and aldermen by section 5978, supra, and the defendants were not proceeding in a matter over which they had no jurisdiction, but in a matter in which they had express authority to proceed. The- complaint filed before them, to the effect that Weber was keeping a disorderly house, was sufficient to move them to exercise the power conferred by the statute. The complaint by the colored citizens of the city was not *82the complaint of the defendants; they were not parties tó it and were not responsible for any statement made in it, and it is immaterial, so far as they are concerned, whether the statements were true or false, made in good faith or through malice. It was presented to them when in session and they were bound to receive it and to hear it read and when read might take action, or omit to act upon it as they deemed expedient.

The appointment of a committee to investigate the charges was not only authorized, but was a conservative and cautious step taken for the purpose of gaining’ information upon which they might confidently rely before proceeding to take any other step, and was clearly within their discretion. They are not responsible to any one for what is contained in the communication of the colored citizens of the city, nor for ordering that communication to be filed, nor for appointing a committee to investigate the charges contained in the communication, unless actuated by actual malice. Cooley on Torts, sec. 214; Callahan v. Ingram, 122 Mo. 1. c. 365.

The appointment of the committee and the report of the committee were both in the discharge of official duty and are for that reason privileged. Hamilton v. Eno, 81 N. Y. 116; White v. Nichols, 44 U. S. 266; Cooley on Torts, Callahan v. Ingram, supra.

The complaint, the appointment of the committee, and the report of the committee, so far as the mayor and council are concerned, being privileged communications,' malice can not be implied, and no recovery can be had against them without proof of actual malice. Briggs v. Garrett, 111 Pa. 404; Lovell Co. v. Houghton, 116 N. Y. 520.

There is no evidence in the record proving or tending to prove actual malice, and defendants’ instruction in the nature of a demurrer to the evidence should have been given.

The judgment is reversed.

All concur.