State ex rel. Arnold v. Lichta

• Decision Date: 31 March 1908
• Citation: 109 S.W. 825,130 Mo.App. 284
• Parties: STATE ex rel. ARNOLD, Relator, v. LICHTA et al., Respondents
• Court: Missouri Court of Appeals

109 S.W. 825

130 Mo.App. 284

STATE ex rel. ARNOLD, Relator, v. LICHTA et al., Respondents

Court of Appeals of Missouri, St. Louis

March 31, 1908

Original petition for writ of certiorari in proceeding to revoke dramshop license.

ORDER OF COUNTY COURT REVOKING LICENSE SET ASIDE.

STATEMENT.--On February 4, 1908, the county court of Montgomery county granted to relator, W. H. Arnold, a license to keep a dramshop on lot 7, block 5, in the city of Wellsville, in said county, for a period of six months. Relator paid the license tax, gave the statutory bond and otherwise complied with the dramshop act and received his license, and on February 8, 1908, was conducting a dramshop under his license. On the twenty-first of the same month Albert Stuck made affidavit before E. P. Rosenberger, notary public, to the effect, that he was nineteen years of age on January 24 1908, and that on or about February eighth of the same year in company with Albert Peery, he went into relator's dramshop, and William Dixon, bartender for relator, served affiant and Peery each with a drink of whisky, and that Peery at the time was twenty years of age. Using this affidavit as a foundation, L. Nutter and five other citizens of Wellsville filed a petition in the county court, charging relator with having unlawfully sold and given away intoxicating liquors on February 8, 1908, to Albert Stuck, a minor, and also to Albert Peery, a minor, and charged that relator had suffered intoxicating liquors to be dispensed in his dramshop to said minors, and prayed that relator's license as a dramshop keeper be revoked for thus violating the law prohibiting a dramshop keeper from selling or giving away intoxicating liquor to any minor. On the filing of the petition a summons, accompanied by a copy of the petition, was issued out of the county court, commanding the relator to appear before said court on the eleventh day of March, 1908, to answer the complaint filed against him and show cause, if any he had, why his license as a dramshop keeper should not be revoked. Relator appeared before the county court and filed his return to the petition.

The return or answer states, in substance, that relator at no time sold or gave away any intoxicating liquors to Stuck or Peery, and that he gave his bartender express and implicit orders not to sell intoxicating liquors to minors, nor to permit the same to be done on his premises, and not to permit minors to visit or remain in his dramshop; that if the bartender furnished intoxicating liquor to any minor or minors it was against relator's instructions and contrary to his will, denied that the bartender furnished any liquor whatever to Stuck or Peery, and alleged that relator had posted inside and outside his dramshop a printed sign having the inscription, "No minors will be served and are not allowed in my saloon." For further return relator alleged that the allegations of the complaint stated no cause, under the law, authorizing the county court to revoke his dramshop license, and alleged that the county court had no jurisdiction to revoke his license for the offense alleged in the petition. The county court heard the evidence and found that "William H. Arnold, at and in the county of Montgomery and State of Missouri, being then and there a licensed dramshop keeper as aforesaid, on the eighth day of February, 1908, did then and there unlawfully and knowingly sell, give away and otherwise dispose of and suffer the same to be done about his premises certain intoxicating liquor, to-wit: one gill of whisky unto one Albert Stuck; and unto one Albert Peery, both minors and under the age of twenty-one years, and contrary to the provisions of the statutes of the State of Missouri. And the court doth further find the aforesaid William H. Arnold guilty in manner and form as charged in the specifications and that he has not at all times kept an orderly house." On this finding the court entered an order or judgment revoking Arnold's dramshop license, the order to take effect at eleven o'clock p. m., on Saturday, March 28, 1908, and taxed the cost of the proceedings against Arnold. Arnold filed an unavailing motion to set aside the order revoking his license. On March 16, 1908, Arnold presented his petition to one of the judges of this court, praying that a writ of certiorari be issued, directed to the judges of the county court of said Montgomery county, commanding them to certify to this court a full and complete transcript of the record of the proceedings in the Arnold matter and to show cause, if any they had, why such proceedings should not be reversed and set aside. The writ was duly issued and served upon respondents, who have filed a full and complete transcript of the proceedings (a summary of which is stated above). With their return respondents filed a motion containing fifteen grounds for a dismissal of the proceedings. The cause has been ably and exhaustively argued by counsel representing both sides and submitted to the court for its decision.

E. P. Rosenberger, Prosecuting Attorney of Montgomery County, Missouri, for respondents; H. W. Johnson of counsel.

Ball & Ball for relator.

OPINION

BLAND, P. J. (after stating the facts).

--1. Respondents' first point is that the writ was improvidently issued, in that it was issued contrary to the usual practice of the court to deny the issuance of extraordinary writs, unless there is some special reason therefor. Suffice it to say that this court has no rule in respect to the issuance or non-issuance of writs in cases of this character, and the writ having been issued and a return made thereto, the court is put in possession of the case and should not halt at this stage of the proceedings and dismiss the cause but should proceed to dispose of the case on its merits.

2. The second point made by respondents is that the act of the county court in revoking relator's license was a ministerial or administrative act, non-judicial in its nature, and for this reason the writ of certiorari will not lie. In Barnett v. County Court, 111 Mo.App. 693, 86 S.W. 575, Barnett's license as a dramshop keeper was revoked by the county court of Pemiscot county, on the ground that Barnett had not at all times kept an orderly house. Barnett filed an affidavit for an appeal from the order of the county court to the circuit court. The county court refused to grant the appeal, and Barnett sued out of this court an alternative writ of mandamus directed to the justices of the county court, commanding them to allow the appeal or show cause. Cause was shown and NORTONI, J., writing the opinion for this court, held that the order of the county court revoking Barnett's license was not such a judgment as could be appealed from, under the statutes of this State regulating appeals from county courts to circuit courts, on the ground, first, that no appeal is given by the dramshop act from an order of the county court revoking a dramshop keeper's license for keeping a disorderly house and, second, that an appeal does not lie under the general statutes allowing appeals from county courts to the circuit courts, for the reason there is no contractual relation between the State and the licensee; that the latter has no property in the license, which is a mere permit, subject to revocation by the power that granted it, and there being no property rights involved, there is nothing calling for the exercise of any judicial function by the county court in revoking the license; and that in the proceedings the county court did not act in a judicial capacity but in the capacity of an excise board, as the agent of the State, in a ministerial or administrative capacity, exercising the police powers enforcing police regulations of the State. The Barnett case is approvingly cited and followed in the case of State v. Seebold, 192 Mo. 720, 91 S.W. 491, and in the case of State v. Kirk, 112 Mo.App. 447, 86 S.W. 1099. This doctrine is supported by the authorities cited in the Barnett and Seebold cases and also by the case of Higgins v. Talty, 157 Mo. 280, 57 S.W. 724. It may therefore be accepted as settled law, that a county court in revoking the license of a dramshop keeper, on the charge of not at all times keeping an orderly house, does not exercise any judicial function. But in determining whether or not the charges against relator brought the case within its jurisdiction to revoke his license, the county court exercised judicial power, and if in the exercise of this function, the court stepped outside the bounds of its jurisdiction to take cognizance of the charges, certiorari will lie. [State ex rel. Ellis v. Elkin, 130 Mo. 90, 30 S.W. 333, 31 S.W. 1037; State ex rel. v. Guinotte, 156 Mo. 513, 57 S.W. 281; 4 Ency. of Plead. & Prac., p. 38; 23 Am. and Eng. Ency. of Law (2 Ed.), 230.]

In 4 Ency. Plead. and Prac., p. 10, it is said: "In its office the writ of certiorari is confined to reviewing the proceedings of inferior boards, officers, or tribunals which proceed in a summary manner and not according to the course of the common law, and where there is no other remedy provided by statute. By such writ (certiorari) inferior judicatories are kept within the bounds of their jurisdiction, and may be required, where their actions are erroneous or illegal, to certify the record of such proceedings to the superior court to be reviewed."

In State ex rel. v. Dowling, 50 Mo. 134, BLISS, J., quoting from Judge SAVAGE, in Starr v. Trustees, etc., 6 Wend. 567, said: "It may be said that these plaintiffs have their remedy by action, therefore certiorari will not lie. Where there is no jurisdiction there is a remedy by action, but that does not deprive this court of jurisdiction, nor prevent a party injured from pursuing this remedy."

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