Peterson v. Board of County Com'rs of Linn County, 39293

• Decision Date: 10 April 1954
• Docket Number: No. 39293,39293
• Citation: 176 Kan. 75,269 P.2d 450
• Parties: PETERSON et al. v. BOARD OF COUNTY COM'RS OF LINN COUNTY.
• Court: Kansas Supreme Court

Page 450

269 P.2d 450

176 Kan. 75

PETERSON et al. v. BOARD OF COUNTY COM'RS OF LINN COUNTY.

No. 39293.

Supreme Court of Kansas.

April 10, 1954.

Syllabus by the Court.

1. Under Art. 3, Sec. 3, of our constitution this court has only '* * * such appellate jurisdiction as may be provided by law. * * *'

2. Under our statute 1953 Supp. to G.S.1949, 41-2708, the board of county commissioners may revoke a cereal malt beverage license previously issued by it, and within twenty (20) days thereafter the licensee may appeal to the district court, but neither that statute nor any other authorizes an appeal from the district court to the Supreme Court.

L. Perry Bishop, Paola, and Hal C. Davis, Topeka, for appellants.

Harry C. Blaker, Pleasanton, and Leighton A. Fossey, of Mound City, on the briefs, for appellee.

Harold R. Fatzer, Atty. Gen., and William Paul Timmerman, Asst. Atty. Gen., submitted briefs amicus curiae.

HARVEY, Chief Justice.

This is an attempted appeal from an order of the district court refusing to set aside a resolution of the board of county commissioners which revoked a cereal malt beverage license previously issued to the appellants.

The record discloses that on March 2, 1953, the county commissioners of Linn county, Kansas, issued Cereal Malt Beverage Retail License No. 1 for the current year of 1953 to the appellants Marjorie L. and H. A. Peterson. On April 20, 1953, they adopted a resolution which, omitting caption and signatures, reads:

'That Whereas it appears to the Board that Marjorie L. and H. A. Peterson, the holders of 1953 Cereal Malt Beverage Retail License No. 1, issued by Linn County, Kansas, on March 2, 1953, have violated the Laws of the State of Kansas relating to the sale of said cereal malt beverages with particular reference to sale thereof on Sundays and to minors; Now, therefore be it resolved by the Board that the said Cereal Malt Beverage license be revoked as provided by law, and the County Attorney is hereby directed to prepare proper notice and order to accomplish the same and the Sheriff of Linn County, Kansas, is hereby directed to serve such notice on the holders of said license and to make return thereof to said Board.'

On the same date they issued the following order:

'Now on this 20th day of April, 1953, by the Board of County Commissioners of Linn County, Kansas, It Is Ordered that the Cereal Malt Beverage License issued by said Board on March 2, 1953, to Marjorie L. and H. A. Peterson, being License No. 1, be and the same is hereby revoked as of 12:00 o'clock Midnight April 25, 1953, and that the County Clerk of Linn County, Kansas, enter this order of record as of April 25, 1953.

'By the Board It Is So Ordered.'

They directed the county attorney of Linn county to prepare proper notice and order thereof and the sheriff of Linn county to serve notice upon the licensees. The order was prepared by the county attorney and served by the sheriff on April 20, 1953.

On May 4, 1953, the board of county commissioners fixed the amount of the appeal bond at $150 and on May 27, 1953, the appellants served and filed their notice of appeal to the district court of Linn county and gave their bond which bond was approved, and a transcript of the above mentioned proceedings was filed with the clerk of the district court on May 13, 1953.

In the district court counsel for appellants filed a motion which summarized the proceedings and prayed for an order requiring the board of county commissioners to file its petition or bill of particulars stating and setting forth the grounds and facts including names and dates relied upon by it as the basis for the attempted and purported revocation of the cereal malt beverage license issued to the appellants for the year 1953. Upon consideration of that motion the court, after some discussion and citing of authorities, expressed its view as follows:

'I am of the opinion that on appeal the question will be whether the County Commissioners acted in good faith or whether they were guilty of bad faith, fraud, corruption or oppression. Having this opinion, the motion for the bill of particulars should be and the same is overruled.'

This order was made June 4, 1953, and the case was set for trial on July 30, 1953. On that date the parties appeared with their counsel and announced ready for trial. Counsel for appellants stated the appeal was taken under G.S.1951 Supp. 41-2708; that it was a trial de novo; that the burden of proof was upon appellee and requested that appellee commence the introduction of its evidence. They again requested that the board of county commissioners file a petition or bill of particulars. This request was overruled. The court held appellants were not entitled to a trial de novo; that the burden of proof was upon appellants; that the testimony which could be introduced by appellants was limited to evidence bearing upon the question of whether or not the board of county commissioners was guilty of bad faith, fraud, corruption or oppression in its revocation of the cereal malt beverage license.

Without introducing any evidence on their own behalf, and none having been introduced by the appellee, the appellants demurred to the evidence and also moved for judgment on the pleadings. These were argued and overruled. Counsel for appellants announced they were standing on their demurrer and motion for judgment. Whereupon, judgment was rendered for the appellee. Within due time notice of appeal to this court was served and filed. The appeal has been duly heard in this court upon briefs and oral argument.

Our present statutes relating to the sale of cereal malt beverages was first enacted as Chapter 214, Laws 1937. As some of the sections were amended they appear in G.S.1949, as Sections 41-2701 to 41- 2712. As some of the sections were later amended they are shown in 1953 Supp. to G.S.1949. Since this is the first case to reach this court by appeal...