Higgins v. Talty

• Decision Date: 08 May 1900
• Parties: HIGGINS v. TALTY et al.
• Court: Missouri Supreme Court

57 S.W. 724

157 Mo. 280

HIGGINS v. TALTY et al.

Supreme Court of Missouri.

May 8, 1900.

WRIT OF PROHIBITION — JUDICIAL OFFICER — LICENSE TO SELL LIQUOR.

Since a license to sell liquor is neither property nor a contract with the state, but a mere permit, subject to revocation, an excise commissioner authorized by Rev. St. 1899, § 3021, to revoke such licenses for violation of the liquor laws, is not, by reason of such power, a judicial officer, and hence a writ of prohibition will not lie against him.

In banc. Application by Charles P. Higgins for a writ of prohibition against John A. Talty and Joseph Roselli. Writ awarded.

E. C. Crow, Atty. Gen., and Kimbrough Stone, for plaintiff. Orville T. Smith, for defendants.

BURGESS, J.

The defendant Joseph Roselli is a resident of the city of St. Louis, and a keeper of a dramshop in said city under a license granted to him by the plaintiff, as excise commissioner, on or about the 1st day of February, 1900. On April 4, 1900, complaint in writing was made to plaintiff as excise commissioner by one P. M. Reynolds, a police officer of said city, that Roselli was keeping and conducting a disreputable and disorderly dramshop, and was violating the statutes of the state governing dramshop keepers, whereupon plaintiff on the same day gave Roselli a written notice that he would hear said complaint, and investigate the same, on the 12th day of April, 1900, at the hour of 2:30 p. m., at the office of the plaintiff in said city. On the 9th day of April, 1900, defendant Roselli applied for and obtained from the defendant the Honorable John A. Talty, judge of the circuit court of the city of St. Louis, against the plaintiff, an order requiring him to show cause on Thursday, April 12, 1900, at 10 o'clock a. m., in division No. 7 of the circuit court of the city of St. Louis, why he should not be prohibited, restrained, and enjoined from proceeding to exercise further jurisdiction or cognizance to try said Roselli upon the charge of violating the laws governing dramshops, or upon any other charge, and prohibited, restrained, and enjoined him in the meantime from proceeding to exercise further jurisdiction or cognizance of said proceeding. Thereafter, on the 11th day of April, 1900, plaintiff herein applied to and obtained from one of the judges of this court a writ of prohibition against the defendants Roselli and Talty, prohibiting them from further continuing said prohibitory proceeding against the excise commissioner, and requiring them to show cause before the supreme court in banc, on or before the 24th day of April, 1900, why the writ should not be made peremptory. Defendant Roselli, for plea to the temporary writ, alleges that it should not have been granted, for the reason that the petition does not state any ground for the relief prayed for, and because under the constitution and laws of this state plaintiff, as excise commissioner of the city of St. Louis, has not, and could not have, any jurisdiction, right, or authority of law to try the issue of fact as to whether this defendant is or is not guilty of some violation of the laws of this state governing dramshops, or to exercise any judicial function whatever. For his separate return to the order to show cause the defendant the Honorable John A. Talty alleges that a peremptory writ should not issue against him as judge of the circuit court, because said court has jurisdiction to inquire by what authority said Higgins, as excise commissioner, is about to take the alleged threatened action, inasmuch as such action requires the exercise of judicial power by him. The sections of the statute (Rev. St. 1899) under which the license was granted, and under which the excise commissioner was proceeding when prohibited from so doing, are as follows:

"Sec. 3019. Excise Commissioner's Office Established — Authority — Appointment — Tenure. — In all cities in this state which now have or may hereafter have a population of 200,000 inhabitants or more, there is hereby created the office of excise commissioner, who shall have exclusive authority to grant dramshop licenses; and the commissioner shall be appointed by and hold his office during the pleasure of the governor.

"Sec. 3020. Commissioner — Granting Dramshop License — Proceedings. — Any person desiring a dramshop license shall present a petition to the excise commissioner, as required by the laws of this state, and if the petition is signed by the requisite number of petitioners, and the applicant is a person of good moral character, the commissioner shall give to the applicant a statement in writing, that upon the payment of the license tax required by law, a dramshop license will be issued to such applicant.

"Sec. 3021. Payment of License Tax — Receipts — Revocation of License. — Upon receiving the statement mentioned in section 3020 of this article, the applicant for dramshop license shall pay to the city collector the amount fixed by law as necessary to secure dramshop license, taking therefor duplicate receipts, one of which shall be filed with the city treasurer, and the other shall be filed with the excise commissioner, who shall then issue dramshop license to the applicant for the period provided by law; and the commissioner shall have authority to revoke any license by him granted, if the dramshop-keeper to whom license has been issued shall violate any of the provisions of the laws of this state governing dramshops."

The vital question presented by this record is whether the action which was about to be taken by plaintiff as excise commissioner with respect to the charges against Roselli was judicial. If so, the Honorable John A. Talty had jurisdiction to issue the writ of prohibition; otherwise, he had no power to do so. No...