Alexander v. State

• Decision Date: 16 December 1905
• Citation: 91 S.W. 181,77 Ark. 294
• Parties: ALEXANDER v. STATE
• Court: Arkansas Supreme Court

91 S.W. 181

77 Ark. 294

ALEXANDER v. STATE

Supreme Court of Arkansas

December 16, 1905

Appeal from Hot Spring Circuit Court; ALEXANDER M. DUFFIE, Judge affirmed.

Affirmed.

C. V Teague and H. Berger, for appellant.

Appellant was protected by the license issued to him under the order of the county court. The county court having jurisdiction to pass upon the sufficiency of the petition presented for license, its order, even if erroneous, was not void. 55 Ark 208; Black on Judgments, § 183. It will be presumed to have acted on facts sufficient to sustain its action. 53 Ark. 478, and cases cited. Being a court of original jurisdiction for the purpose of issuing liquor license, its proceedings cannot be collaterally inquired into, 28 Ark. 416. Its judgments on matters submitted to it within its jurisdiction are conclusive until reversed by a superior tribunal. 11 Ark. 552; 20 Ark. 534; 13 Ark. 179; 55 Ark. 179.

If the county court erred in granting license upon appellant's petition, yet it was the judgment of a court having jurisdiction of the subject-matter, and is not a nullity. 11 Ark. 519; 12 Ark. 87; 13 Ark. 177; 19 Ark. 499; 23 Ark. 121; 25 Ark. 52; 26 Ark. 421; 33 Ark. 575; 34 Ark. 69; 40 Ark. 433; 55 Ark. 375; 52 Ark. 7; 44 Ark. 267: Such errors cannot be considered when the judgment is brought collaterally into question. 9 Wall. 23; 1 Black on Judg. § 246.

Robert L. Rogers, Attorney General, for appellee.

In the cancellation of the first license, defendant lost all right to sell liquors thereunder, as well as his right to recover the money he had paid. 54 Ark. 236; 71 Ark. 419.

It was not in the discretion of the county court to waive the payment of the license tax and order the issuance of the second license. It acquired no jurisdiction, and its acts were a nullity. 28 Ark. 516; 48 Ark. 151; 11 Ark. 519.

OPINION

MCCULLOCH, J.

The appellant was indicted, under section 6882, Kirby's Digest, for the offense of engaging in the business of selling spirituous, vinous and malt liquors without having paid the tax required by law, and was convicted and adjudged to pay a fine of $ 1,600.

The facts are undisputed. On January 7, 1902, the county court of Hot Springs County, upon petition of a majority of adult inhabitants residing within three miles of a school house in Malvern, made an order, as provided by law, prohibiting the sale of intoxicating liquors within that radius. On January 14, 1904, the county court, upon petition of adult inhabitants of that radius, made an order revoking the former prohibition order, and on the same day issued a license to appellant for the sale of liquor in the town of Malvern. Certain remonstrants took an appeal to the circuit court from the order of revocation, and, upon trial anew in that court, the prayer of the petition for revocation was denied, the revocation order made by the county court was set aside, and the original prohibition order declared to be in full force. This judgment of the circuit court was certified down to the county court and there entered. Subsequently, another petition for revocation was filed in the county court, and on April 14, 1904, that court made another order revoking the prohibition order.

Thereupon, appellant presented his petition to the county court for license, reciting the foregoing proceedings, the payment by him of the license tax in January preceding, the subsequent revocation of his license by the judgment of the circuit court, and prayed that the collector be ordered to issue to him a receipt showing the previous payment of said license tax, and that, upon the filing of such receipt with the county clerk, a license be issued to him in lieu of the former license, without requiring another payment of the tax. The court granted the prayer of this petition, and ordered the issuance of license. The collector executed to appellant a duplicate receipt, which was filed with the clerk, who issued to appellant a liquor license in regular form. It is admitted that appellant, under this license, engaged in the business of selling liquors. Was he protected by the license?

The judgment of the circuit court denying the prayer of the petition for revocation of the prohibition order operated as a revocation of the license issued to appellant. Bordwell v. State, ante, p. 161; State v. Doss, 70 Ark. 312, 67 S.W. 867; Black on Intoxicating Liquors, § 129.

Upon revocation of the license, appellant was not entitled to return of the money paid for the license, and could not have recovered it. Peyton v. Hot Springs Co., 53 Ark. 236, 13 S.W. 764; Black on Intoxicating Liquors, § 188; Lydick v. Korner, 15 Neb. 500, 20 N.W. 26; Board of Commissioners of Monroe County v. Kreuger, 88 Ind. 231.

The second order of the county court revoking the prohibition order did not operate as a reinstatement of appellants license, which had been revoked by the judgment of the circuit court. It was completely annulled, and no life could be infused into it. The county court then attempted to credit appellant with the amount which he had paid for the annulled license, and to issue a new license to him without further payment of the tax prescribed by law. This the court had no power to do, as the statute requires that, before the court can grant the license and order the clerk to issue the same, the appellant must first "pay to the collector, and produce his receipt therefor, the amount of money and fees specified," etc. Kirby's Digest, § 5122; Hencke v. Standiford, 66 Ark. 535, 52 S.W. 1; Zielke v. State, 42 Neb. 750, 60 N.W. 1010; Fry v. Kaessner, 48 Neb. 133, 66 N.W. 1126; Doran v. Phillips, 47 Mich. 228, 10 N.W. 350.

It is undoubtedly true, as contended by counsel for appellant, that determinations of county courts are, until reversed by superior tribunals, conclusive as to all matters within their jurisdiction; and adjudged cases are not lacking which hold that irregularities in judgment of such courts granting liquor licenses cannot be taken advantage of collaterally, so as to avoid licenses issued pursuant thereto. Black on Int. Liq., § 178; Goff v. Fowler, 20 Mass. 300, 3 Pick. 300; Hornaday v. State, 43 Ind. 306; Com. v. Graves, 57 Ky. 33, 18 B. Mon. 33.

But, under our statute, payment of the tax to the collector and production of his receipt therefor are essential to the jurisdiction of the court to grant the license. The judgment of the court affirmatively shows that the tax was not paid, and it was therefore void for want of jurisdiction, and the license issued pursuant thereto was also void, and afforded no protection to appellant.

The statute under which appellant was indicted reads as follows:

"Sec 6881. Every person...