Barnett v. Pemiscot County Court

• Decision Date: 04 April 1905
• Parties: BARNETT v. PEMISCOT COUNTY COURT.
• Court: Missouri Court of Appeals

86 S.W. 575

111 Mo. App. 693

BARNETT v. PEMISCOT COUNTY COURT.

St. Louis Court of Appeals. Missouri.

April 4, 1905.

INTOXICATING LIQUORS — LICENSE — NATURE— REVOCATION—APPEAL.

1. A license to sell intoxicating liquors, issued by the county court under the authority exclusively vested in it by Rev. St. 1899, §§ 2990, 2993, does not constitute a contract between the state and the licensee, but is a mere permit, which the licensee accepts subject to the right of the state to revoke through its duly authorized agent, the county court, in the manner and for the causes prescribed by Rev. St. 1899, § 3012.

2. Under Rev. St. 1899, § 1674, giving the circuit court appellate jurisdiction from judgments of the county courts in all cases not expressly prohibited by law; and section 1788, providing that appeals from the county court shall be prosecuted in the same manner as is provided for the regulation of appeals from justices of the peace to circuit courts, and shall be determined anew without regarding any error or informality in proceedings of the county court—an appeal lies from the county to the circuit court only in judicial cases involving life, liberty, and property, and not in a case wherein the county court acts in an administrative and ministerial capacity, as in revoking a liquor license for the causes and in the manner prescribed by Rev. St. 1899, § 3012, in which no right of life, liberty, or property is involved.

3. Nor do Rev. St. 1899, §§ 3017, 3018, providing that, in the event a dramshop keeper is convicted in the circuit court of any one of several offenses therein defined, he shall, in addition to a fine, forfeit his license, confer jurisdiction of an appeal from an order of the county court revoking a license, but such sections merely prescribe an incidental punishment annexed to a conviction of certain offenses.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Mandamus proceedings by William H. Barnett against the Pemiscot county court. From a judgment denying relief, petitioner appeals. Affirmed.

This is a proceeding in mandamus. The respondents H. C. Schult, Scott McDonald, and Timothy Doris are the judges of the county court of Pemiscot county. The appellant was a licensed dramshop keeper in the village of Cotton Wood Point, in said county. A complaint was lodged against appellant in the county court of said county under section 3012, Rev. St. 1899, asking the county court to revoke appellant's license as such dramshop keeper, alleging that he did not at all times keep an orderly house. Appellant appeared, together with his counsel, in said court, and contested the allegations of said complaint. There being then pending against appellant in the circuit court of said county an information charging appellant with suffering to be performed upon in his dramshop certain musical instruments, the matter pending against him in the county court wherein it was sought to revoke his license was continued to await the decision of the circuit court on said information. Afterwards appellant was tried and convicted on said information. At a called term of the county court thereafter the matter to revoke the license of appellant as a dramshop keeper was again taken up by said county court, appellant's counsel appearing thereto. Further evidence was taken therein, and the county court entered an order of record revoking appellant's license as a dramshop keeper, whereupon appellant filed his affidavit for an appeal from said order revoking his license, and prayed an appeal therefrom to the circuit court of said county, which said motion and affidavit for appeal were overruled by the county court, and appellant was denied an appeal therein, whereupon appellant brought this proceeding by mandamus in the circuit court of said county, praying said circuit court for a writ of mandamus, commanding and requiring the county court to grant appellant an appeal from said order of the county court revoking his license aforesaid to the circuit court of Pemiscot county as asked and prayed for in his affidavit for appeal. The respondents, for a return to the alternative writ of mandamus, demurred to the petition of appellant on the ground that the petition and the matters and things therein stated and set forth were not sufficient in law to entitle plaintiff to the relief prayed for, which said demurrer was by the court sustained. Thereupon appellant refused to plead further. Final judgment was entered thereon, and appellant has prosecuted his appeal to this court therefrom. The sole and only question before this court for decision is whether or not appellant was entitled to an appeal to the circuit court from the order of the county court revoking his said dramshop license.

Chas. G. Shepard, for appellant. Brewer & Collins and Faris & Oliver, for respondent.

NORTONI, J. (after stating the facts).

The matter of appeals from county to circuit courts as provided by statute is as follows: Section 1674, Rev. St. 1899, provides: "The circuit courts in the respective counties in which they may be held, shall have power and jurisdiction as follows: * * * Fourth—Appellate jurisdiction from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind." Section 1788 provides: "In all cases of appeal from the final determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is provided by law for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such case had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court." The law nowhere prohibits appeals from county to circuit courts in any class of cases; therefore the limitation of the right of appeal found in the statutes must be left to interpretation by the court. State ex rel. Twining v. St. Louis County Court, 47 Mo. App. 647. The language conferring appellate jurisdiction upon the circuit courts in matters appealed from county courts being in "all cases not expressly prohibited by law," and there being no statute prohibiting appeals of any class, the right of appeal would appear to cover all manner of matters of which a county court has jurisdiction. But it is the duty of the court, in interpreting this statute, to read in connection therewith section 1788, above quoted, on the same subject, which last-mentioned statute directs how an appeal may be perfected to the circuit court, and what shall be done with such case after it reaches the appellate court. It provides, "Such appellate court shall thereupon be possessed of such case and shall proceed to hear and determine the same anew." When we read these two sections together, we are forced to the inevitable conclusion that appeals from county to circuit courts can be had only in such cases as are triable de novo in the circuit court; that is, susceptible of being tried anew in the appellate court, and in which the circuit court can enter a valid judgment of its own. An appeal can only be taken when the judgment or order appealed from is judicial. If the matter be not judicial, there is no appeal. Ency. Pl. & Pr. vol. 2, p. 26; Elliott, App. Procedure, § 78; St. L. I. M. & S. Ry. Co. v. City of St. Louis, 92 Mo. 160, 4 S. W. 664; Scott Co. v. Leftwich, 145 Mo. 26, 46 S. W. 963; Bean v. Barton County Court, 33 Mo. App. 635; State ex rel. Twining v. St. Louis County Court, 47 Mo. App. 647. It has been held that "appeals are allowed only where, when, in the nature of the case, the circuit court can try the matter anew, and give such judgment as the county court should have given." Sheridan v. Fleming, 93 Mo. 321, 5 S. W. 813.

It will be observed that the statute above quoted granting the right of appeal does not provide for an appeal in all matters of which the county court has jurisdiction. Section 1674 provides for an appeal in all "cases" not expressly prohibited, etc. The same word "cases" is employed in section 1788, as is also the word "causes," which is synonymous therewith. The word "case" or "cause" to which the statute confers the right of appeal has a well-settled and definite meaning in law. Black's Law Dictionary defines it as follows: "The primary meaning of `case' is `cause' when applied to legal proceedings. It imports a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. In its generic sense, the word includes all causes, special or otherwise." "A case is a contested question before a court of justice; a suit or action; a cause; a state of facts involving a question for discussion or decision, especially a cause or suit in court." 2 Am. & Eng. Ency. Law, vol. 5, 748; Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715; Calderwood v. Peyser, 42 Cal. 115; Home Ins. Co. v. N. W. Packet Co., 32 Iowa, 223, 7 Am. Rep. 183; Ex parte Towles, 48 Tex. 433; Kundolf v. Thalheimer, 12 N. Y. 596. When viewed from this standpoint, as well as that heretofore mentioned, it is apparent that the statute contemplates appeals in judicial matters only; that is, in cases or causes in which some substantial right is involved and under adjudication. The substantial civil rights guarantied by our Constitution, are primarily those of life, liberty, and property. If any one of these be invaded or infringed upon, the citizen is entitled to invoke the judicial process of the courts in order to have his...