Hein v. Smith

• Decision Date: 06 July 1878
• Citation: 13 W.Va. 358
• Parties: HEIN v. SMITH, JUDGE, et al.
• Court: West Virginia Supreme Court

13 W.Va. 358

HEIN v. SMITH, JUDGE, et al.

Supreme Court of West Virginia.

July 6, 1878

1 A county court has a discretion to grant, or refuse, a certificate for obtaining a license to retail spirituous liquors, & c.; and the action of the county court therein cannot be reviewed upon appeal, writ of error or supersedeas.

2. In such a case, if the judge of a circuit court grants a supersedeas to the order of the county court so granting such certificate, and reverses and annuls the order the said action of the judge and court is coram non judice, and of no effect.

3. After the judgment of the circuit court has been rendered, as well as before, the person injured by the judgment may obtain from the Supreme Court of Appeals a writ of prohibition, to restrain the appellant and the judge from proceeding to enforce such judgment.

Petition by Joseph Hein for a writ of prohibition restraining the Hon Joseph Smith, judge of the seventh judicial circuit, and William Smith from any further proceedings upon certain orders of the county court of Mason county.

JOHNSON JUDGE, furnishes the following statement of the case:

On the 4th day of May, 1878, Joseph Hein, by counsel, presented to this Court a petition, supported by his affidavit, praying for a writ of prohibition to be directed to the Hon. Joseph Smith, judge of the circuit court of Mason county, and to William Smith, restraining them from any further proceedings upon orders of the county court of Mason county, made respectively on the 22d and 27th days of March, 1878, upon a motion, wherein the said Joseph Hein was applicant, and William Smith and forty-four others, citizens and tax-payers within the incorporated town of Point-Pleasant, Mason county West Virginia, objecting, with a transcript of the record of the order aforesaid, praying a writ of supersedeas, thereto, the order of the circuit court of Mason county awarding said writ, and the order of the said circuit court on the hearing of said supersedeas, setting aside and annulling said orders of the said county court.

Upon said petition a rule by this Court was awarded against Joseph Smith, judge, and said William Smith, returnable on the 7th day of June next thereafter, requiring them to show cause, if any they could, why the writ of prohibition should not issue.

The record accompanying the petition shows, that at a county court, continued and held for the county of Mason, on the 22d day of March, 1878, on motion of Joseph Hein, who desired authority to obtain a certificate for a State liense, the court being satisfied that said Hein was not of intemperate habits, and the consent of the common council of the town of Point-Pleasant, having been obtained for the purpose, and the said Joseph Hein, together with Peter Lambrecht and John Meis, his sureties, having entered into and acknowledged a bond, in open court, in the penalty of $3,500.00, conditioned according to law, which bond was approved by the court, and ordered to be filed according to law, the assessor of the first assessment district of the said county was authorized to issue to the said Joseph Hein a certificate for a State license in said county, " to sell, offer and expose for sale, spirituous liquors, wine, Porter, ale and beer, and any drinks of like nature, at his house on lot No. 9, west side of Main street, Point-Pleasant, county and state aforesaid said license to commence on the 1st day of May, 1878, and expire on the 30th day of April, 1789."

To the granting of which certificate, and the ruling of the court, William Smith and others objected.

On the 27th day of March, 1878, the said county court entered the following order:

" This day came the parties, by their attorneys, and Joseph Hein, by his attorneys, moved the court to award him his costs, expended in this behalf; which motion being argued and considered and submitted, the court doth sustain said motion. It is therefore considered by the court, that Joseph Hein recover of said William Smith and others, petitioners, his costs, by him in this behalf expended."

Upon the hearing of said application the court signed two bills of exceptions to its rulings. The first bill shows, " that when the application of Joseph Hein was made to the court, to obtain a certificate authorizing the assessor of the first assessment district of Mason county, to issue him a license to sell at retail spirituous liquors, ale, wine, beer, and any drink of like nature within the incorporated town of Point-Pleasant, Mason county, West Virginia, he, the said Joseph Hein, presented certificate to the court in the words and figures following, to-wit:

" POINT PLEASANT, W. VA., January 7, 1878.

At a regular meeting of the common council, held this day, on application, of Joseph Hein a certificate is granted him, that he is not of intemperate habits. And council doth grant him the privilege of selling at retail, spirituous liquors, wines, porter, ale, beer, and drinks of like nature, in his house on the west side of Main street in this town, to commence on the 1st day of May, 1878, and expire on the 30th day of April, 1879.

Copy Teste:

W. H. HALE,

Recorder. "

Which was the only certificate offered, and which was the only evidence offered, to the court to prove, that said applicant, Hein, has obtained the consent of the authorities of the incorporated town of Point-Pleasant, Mason county, West Virginia. Whereupon the petitioners, William Smith and others, objected, because the certificate did not show, that it was granted, or issued, or approved, by the authorities of said town, acting, and exercising the powers, and performing the duties of the common council of said town, at the time this application is made. Whereupon a petition of William Smith and forty-four others was offered to the court. Which petition, the record states, is lost or mislaid.

The petitioners offered evidence to prove, that the council, which granted the certificate, gave it, pending a suit in equity to enjoin their successors in office from acting on this very subject; and offered to prove, that on the 3d day of January, 1878, there was an election held in the said town of Point-Pleasant, by order of the town council thereof, for the purpose of electing a mayor, recorder and five councilmen; and that the issue in said election was, whether or not the town council would give their consent to have license saloons, to sell at retail spirituous liquors, & c., within the corporate limits of said town; and that the party opposing the granting of license, to keep such saloons, to sell at retail spirituous liquors, & c., within the corporate limits of said town, were successful.

And further offered to prove, that the term of office of the members of council, which granted said certificate, would have legally expired on the 1st day of February, 1878, had not the injunction aforesaid been granted, and which was dissolved on the ____ day of February, 1878.

And further offered to prove that the Common Council of said town was composed of entirely different members, at the time said certificate was granted, from those who composed it at the time the application was made for license; and that the Common Council, elected on the 3d day of January aforesaid, qualified and took possession of their respective offices on the 5th day of March 1878, all of which evidence being offered, was objected to by said Hein, which objections being referred to the court, were sustained; and the court refused to allow the evidence to be heard, on the ground that the certificate, produced by said applicant, Hein, was conclusive on the court as to its validity and effect; and therefore the court granted the certificate or order to said Hein authorizing said assessor to issue said certificate of license to sell at retail spirituous liquors, wine, ale, beer, and any drink of like nature, within the incorporated town of Point-Pleasant, Mason county, West Virginia.

And moreover, on the final argument of the case, three counsel appeared for the said applicant Hein; and the counsel for petitioner Smith, and others, objected to three appearing to argue the case, or if they were allowed to do so, that counsel on the other side ought to be allowed to alternate with them in the argument; and this being objected to by the applicant, Hein, and the question being referred to the court, the objection of petitioner Smith and others was overruled; and three counsel were allowed to argue on behalf of applicant, Hein, two of them opening the argument, then being followed by counsel for petitioner Smith and others, and the argument being closed by counsel for Hein, and but one argument was allowed against him; to all of which opinions and decisions of the court the petitioners, Smith and others, except, & c."

The second bill of exceptions was to the judgment of the court for costs against the petitioners. Smith and others, and in refusing to allow counsel for petitioners, to open and conclude the argument on the motion for judgment for costs.

To the two orders entered by the county court as aforesaid, the judge of the circuit court of Mason county granted upon the petition of said William Smith and others a supersedeas, upon the hearing of which the circuit court of Mason county, set aside and overruled the said orders of the county court of Mason county, with costs against said Hein to said Smith and others, and remanded the case to the county court of Mason county, " to be further proceeded in, if the said Hein should desire further to prosecute his said application; and if the said certificate, purporting to be from the authorities of the town of Point-Pleasant, should be offered in evidence again the said William Smith and others, parties to this contest, are allowed to...