Burke v. Coleman

• Decision Date: 09 June 1947
• Docket Number: 40019
• Parties: In re Application to Suspend or Revoke State Liquor License No. 1442, Edmund Burke, Supervisor of Liquor Control of the State of Missouri, Appellant, v. Martha Frances Coleman
• Court: Missouri Supreme Court

202 S.W.2d 812

356 Mo. 598

In re Application to Suspend or Revoke State Liquor License No. 1442, Edmund Burke, Supervisor of Liquor Control of the State of Missouri, Appellant, v. Martha Frances Coleman

No. 40019

Supreme Court of Missouri

June 9, 1947

Appeal from Buchanan Circuit Court; Hon. Maurice Hoffman Judge.

Reversed.

J E. Taylor, Attorney General, and William C Blair, Assistant Attorney General, for appellant.

(1) The Circuit Court may reverse or modify the decision of the Supervisor of Liquor Control only (1) when such decision is not authorized by law and (2) in cases in which a hearing is required by law, when such decision is not supported by competent substantial evidence on the whole record. Sec. 4905b, Laws 1945, Senate Bill No. 329, 63rd General Assembly. (2) The decision of the Supervisor of Liquor Control was authorized by law. Secs. 4993, 4996, R.S. 1939; State ex rel. Kyger v. Holt County Court Justices, 39 Mo. 521; State ex rel. Carmen v. Ross, 177 Mo.App. 223, 162 S.W. 702; Higgins v. Talty, 157 Mo. 280, 57 S.W. 724; Barnett v. County Court, 111 Mo.App. 693; State v. Wipke, 133 S.W.2d 354, 345 Mo. 283; State ex rel. Henderson v. Cook, 182 S.W.2d 292; State ex rel. Collins v. Kiernan (Kansas City Court of Appeals), Case #20719, decided January 13, 1947 (Not yet officially published); State ex rel. Renner v. Noel, 346 Mo. 286, 140 S.W.2d 57; State ex rel. Heller v. Thornhill, 174 Mo.App. 469. (3) The decision of the Supervisor of Liquor Control was supported by competent substantial evidence on the whole record. (4) The finding and order of the Supervisor of Liquor Control has the force and effect of a jury verdict, and when supported by any substantial competent evidence is conclusive. Senate Bill No. 329, Laws 1945, Sec. 4905b; Seabaugh v. Garver Lumber Co., 193 S.W.2d 370; Phillips v. Air Reduction Sales & Co., 85 S.W.2d 551, 337 Mo. 587; Kemmerling v. Karl Koch Erecting Co., Inc., 89 S.W.2d 674, 338 Mo. 252; McCoy v. Simpson, 139 S.W.2d 950, 346 Mo. 72. (5) All reasonable inferences must be drawn from the evidence to support the finding of the Supervisor of Liquor Control. Elibinger v. Wolf House Furnishing Co., 85 S.W.2d 11, 337 Mo. 9. (6) When the evidence is conflicting, it must be viewed in the light most favorable to the finding of the Supervisor, and evidence which would support a different finding disregarded. Sim v. Truscon Steel Co., 126 S.W.2d 204, 343 Mo. 1216; Renelleman v. East Texas Motor Freight Lines, 196 S.W.2d 171; Johnson v. Fogerty Bldg. Co., 194 S.W.2d 924; Seabaugh v. Garver Lumber Co., 193 S.W.2d 370; Wamhoff v. Wagner Electric Corp., 190 S.W.2d 915. (7) The weight of the evidence and the credibility of the witnesses are for the Supervisor to determine. Seabaugh v. Garver Lumber Co., 193 S.W.2d 915; McCoy v. Simpson, 139 S.W.2d 950, 346 Mo. 72; Hickman v. Metropolitan Ins. Co., 185 S.W.2d 375. (8) Where evidence is conflicting, the finding of the Supervisor must be upheld. Johnson v. Fogerty Building Co., 194 S.W.2d 924; Dever v. Brown Shoe Co., 49 S.W.2d 638, 226 Mo. 1179.

F. J. Frankenhoff for respondent.

OPINION

Leedy, P.J.

This is a companion case to one similarly styled, but bearing No. 40,020, decided concurrently herewith. Both are proceedings brought under Sec. 4905 B [Laws 1945, pp. 1030-31] to review decisions of the Supervisor of Liquor Control revoking licenses issued under the Liquor Control Act [Chap. 32, R.S. '39 and Mo. R.S.A.] to Martha Frances Coleman. The case at bar involves license or permit No. 1442, to sell intoxicating liquor by the drink at "The New Charleston," located at Main and Felix streets in the City of St. Joseph, for the period beginning July 1, 1945, and ending June 30, 1946. Upon a hearing duly held, the Supervisor found the licensee guilty on seven of the nine charges preferred against her, dismissed two of them, and ordered her license revoked, effective May 25, 1946. The circuit court, on review (upon an examination of the transcript of the evidence and proceedings had before the Supervisor), held that the Supervisor's "decision is against the weight of the evidence and is not supported by competent, substantial evidence on the whole record," and, accordingly, ordered and adjudged that it be set aside. The Supervisor appeals. The licensee has filed no brief.

The question as to whether the appeal presents a moot case has been determined in the companion case, and, hence unnecessary to be discussed here.

The seven charges upon which the license was ordered revoked were that Martha Frances Coleman, did:

(1) On the licensed premises on March 30, 1946, unlawfully suffer to be sold to Edgar Foster, by her employee, intoxicating liquor, to-wit: 1/2 pint of whiskey, between the hours of 1:30 a.m. and 6:00 a.m.;

(2) on March 31, 1946, on said licensed premises, unlawfully suffer to be sold to Edgar Foster, by her employee, intoxicating liquor, to-wit: one drink of whiskey and 1/2 pint of whiskey between the hours of midnight Saturday, March 30, and midnight Sunday, March 31;

(3) on April 6, 1946, unlawfully suffer to be sold, by her employee, on her licensed premises, to Edgar Foster, intoxicating liquor, to-wit: seven drinks of whiskey between the hours of 1:30 a.m., and 6:00 a.m.;

(4) on April 7, 1946, unlawfully suffer to be sold, by her employee, on her licensed premises, to Edgar Foster, intoxicating liquor, to-wit: seven drinks of whiskey between the hours of 12:00 o'clock midnight April 6 and 6:00 a.m., April 7;

(5) on Sunday, April 7, 1946, unlawfully suffer to be sold, by her employee, on her licensed premises, to Edgar Foster, intoxicating liquor, to-wit: four drinks of whiskey between the hours of 1:00 p.m., and 4:00 p.m.;

(6) on Sunday, April 7, 1946, unlawfully suffer to be sold, by her employee, on her licensed premises, to Edgar Foster, intoxicating liquor, to-wit: two drinks of whiskey;

(7) on or about March 30, 1946, unlawfully suffer to be sold, by her employee, on her licensed premises, to Edgar Foster, intoxicating liquor, to-wit: 1/2 pint of whiskey which had not been inspected and labeled according to provisions of the Liquor Control Act, . . . and which 1/2 pint of whiskey did not have upon it the certificate and label of the Supervisor of Liquor Control of the State of Missouri, and was not contained in a container stamped or labeled as provided by Article 1, Chapter 32, R.S. Mo. 1939.

The supervisor's statement fairly states the facts, which we adopt, as follows: "There was a sharp conflict between the testimony of Edgar Foster, an agent of the Department of Liquor Control, and of the licensee's employees, her husband, Ora...