Burke v. Coleman

• Decision Date: 09 June 1947
• Docket Number: 40020
• Citation: 202 S.W.2d 809,356 Mo. 594
• Parties: In re Application to Suspend or Revoke State Liquor License No. 971, Edmund Burke, Supervisor of Liquor Control of the State of Missouri, Appellant, v. Martha Frances Coleman
• Court: Missouri Supreme Court

202 S.W.2d 809

356 Mo. 594

In re Application to Suspend or Revoke State Liquor License No. 971, Edmund Burke, Supervisor of Liquor Control of the State of Missouri, Appellant, v. Martha Frances Coleman

No. 40020

Supreme Court of Missouri

June 9, 1947

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

Reversed.

J E. Taylor, Attorney General, Will F. Berry and William C. Blair, Assistant Attorneys 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. 4889, 4891, 4905, 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; Higgins v. Talty, 157 Mo. 280; 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 er 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, 475. (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 Mfg. 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.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

After a notice and hearing the supervisor of liquor control revoked Martha Frances Coleman's license to sell nonintoxicating beer at the "Dew Drop Inn," 1804 Messanie Street, St. Joseph. Upon review the Circuit Court of Buchanan County reversed the supervisor's order on the ground that the "decision is against the weight of the evidence and is not supported by competent, substantial evidence on the whole record." It is contended upon this appeal by the supervisor that his order was authorized by law, that it was supported by competent and substantial evidence and, therefore, the circuit court was in error in setting it aside.

The license was issued on the 1st day of July 1945 and since it expired on June 30, 1946, it has been suggested that the case has become moot and should therefore be dismissed. As a matter of fact there have been several cases in other jurisdictions (Agee v. Cate, 180 Ala. 522, 61 So. 900; Yent v. State, 66 Fla. 336, 63 So. 452; Hale v. Berg, 41 Ind.App. 48, 83 N.E. 357; State ex rel. Hollingsworth v. Armstrong, 94 Neb. 592, 143 N.W. 931), decided in another day, which have considered the expiration of the license prior to appellate review such a supervening event as to render moot that which, except for the event, would be a controversy upon which judicial power could and would act. 42 Am. Jur., Sec. 193, p. 571; 53 Har. L.R. 628. In those cases a county board had issued a liquor license, or a circuit court had mandamused the issuance of a license, and objectors had appealed, the license expiring in the mean while. Those cases were put upon the ground that the court's judgment would be ineffective, that no one would be benefited or injured by a decision and that the court could not try the question of whether a license should be granted. But the doctrine of moot case is not inexorably applicable merely because of the court's inability to act upon an expired license. The force of other considerations, especially in present day administrative procedure, may be so great as to compel an adjudication upon the merits, despite the ineffectiveness of the judgment with respect to the immediate controversy. 42 Am. Jur., Sec. 193, p. 572; 53 Har. L.R. 628. Especially in the case of "short term" administrative orders, (such as the suspension of a license) the inflexible application of the doctrine of moot case would defeat the right of judicial review, a right now contemplated by the Constitution and the Liquor Control Act. Const. Mo., Art. V, Sec. 22; Mo. R.S.A., Sec. 4905b, Laws Mo. 1945, S.B. 329. In some instances the application of the doctrine would defeat the purpose of the law. As was aptly said in a case under the act, "We think that it is not a moot case, for the reason that these parties have a right to a final determination of their rights." State ex rel. Henderson v. Cook, 353 Mo. 272, 276, 182 S.W.2d 292, 294. Then, there is the question of the licensee's right to future licenses and the just effect of previous administrative rulings upon his future applications. Technical Radio Laboratory v. Federal Radio Com., 36 F.2d 111, 113; Seila's Liquor License Case, 124 Pa.Super. 519, 190 A. 203. Finally, but not least important, is the public interest in the fair and proper administration of the liquor laws. State ex rel. Henderson v. Cook, supra; Morrison v. Hess (Mo.), 231 S.W. 997, 999. In view of all these considerations the present appeal does not present a moot case.

The specific charges upon which the supervisor revoked the licensee's nonintoxicating beer (Mo. R.S.A., Sec. 4894 4977) license were that she sold whiskey by the drink, that her husband sold a bottle of whiskey and that she permitted the operation of a crap game on the licensed premises, all in violation of the act. Mo. R.S.A., Secs. 4895, 4896, 4905, 4914. A department agent testified that on March 29, 1946, he purchased "a shot" of straight whiskey from Martha Frances. It was on that day that he saw and participated in a crap game in a back room of the Dew Drop Inn. He testified that the licensee took part in the game. Again, he testified that on March 30th and March 31st he purchased...