State ex rel. Henderson v. Cook

• Decision Date: 05 September 1944
• Docket Number: 38948
• Parties: State of Missouri, at the Relation of W. G. Henderson, Supervisor of the Department of Liquor Control, Relator, v. John F. Cook, Judge of the Circuit Court of Jackson County, Missouri, Division No. 2
• Court: Missouri Supreme Court

182 S.W.2d 292

353 Mo. 272

State of Missouri, at the Relation of W. G. Henderson, Supervisor of the Department of Liquor Control, Relator, v. John F. Cook, Judge of the Circuit Court of Jackson County, Missouri, Division No. 2

No. 38948

Supreme Court of Missouri

September 5, 1944

Provisional rule made absolute.

Roy McKittrick, Attorney General, and Aubrey R. Hammett Jr., Assistant Attorney General, for relator.

(1) The Supreme Court has original jurisdiction of the writ of prohibition. Art. VI, Sec. 3, Mo. Constitution. (2) In the case at bar it was not necessary that the jurisdiction of the lower court be first challenged. 4 Houts, Missouri Pleading & Practice, sec. 1227, p. 466; State ex rel. v Sevier, 88 S.W.2d 154; State ex rel. Ross v Sevier, 334 Mo. 977, 69 S.W.2d 662; State ex rel. v. Bright, 224 Mo. 514; State ex rel. Anheuser Busch Brewing Assn. v. Eby, 170 Mo. 497; State ex rel. v. Harris, 81 S.W.2d 632. (3) Prohibition lies to prevent the exercise of a judicial power where there is a total lack of jurisdiction or where the court is proceeding in excess of its jurisdiction and where there is no other adequate remedy for the relator to pursue as in the instant case. Secs. 4902, 4905, 4913, 4932, 4947, R.S. 1939; State ex rel. Judah v. Fort, 210 Mo. 512; State ex rel. Graham v. Seehorn, 246 Mo. 568; State ex rel. Orr v. Latshaw, 237 S.W. 770; State ex rel. Garry Realty Co. v. Hall, 17 S.W.2d 935, 322 Mo. 1118; State ex rel. Stone v. Thomas, 159 S.W.2d 600, 349 Mo. 22; High on Extraordinary Remedies (3 Ed.), sec. 762, p. 705; State ex rel. Bader v. Flynn, 159 S.W.2d 379; State ex rel. Public Serv. Comm. v. Mulloy, 62 S.W.2d 730, 333 Mo. 282; State ex rel. Castlen v. Mulloy, 55 S.W.2d 294; State v. Owen, 121 S.W.2d 765. (4) Equity courts will not interfere by injunction for the purpose of controlling act of public officers constituting inferior tribunals on matters properly relating to their jurisdiction. 4 Houts, Missouri Pleading & Practice, sec. 1021, p. 157; Oliver v. Orrick, 220 Mo.App. 614, 288 S.W. 966; Hughes v. State Board of Health, 137 S.W.2d 523, 345 Mo. 995; State v. Flynn, 159 S.W.2d 379; State v. Noel, 140 S.W.2d 57. (5) The proper remedy, if any at all, is by certiorari, and, in such case, only the record would be up for review. State v. Anderson, 101 S.W.2d 530; 2 High on Injunctions (4 Ed.), sec. 1242, p. 1249, sec. 1311, p. 1324; Gaertner v. City of Fond du Lac, 34 Wis. 497; McLellan v. Mayor, 99 Wis. 544, 75 N.W. 308. (6) The Circuit Court of Jackson County, Missouri, has no jurisdiction over the relator, Supervisor of the Department of Liquor Control. State ex rel. Gardner v. Hall, 282 Mo. 426; State ex rel. Highway Comm. v. Bates, 317 Mo. 696; Ward v. Public Service Comm., 341 Mo. 227. (7) The case at bar does not present a moot question and abstract proposition of law. State ex rel. Brown v. Bird, 73 S.W.2d 821.

Thomas J. Brown and Donald H. Latshaw for respondent.

(1) Plea to the jurisdiction should have been filed and overruled in circuit court before application for writ of prohibition can be considered by this court. State ex rel. Natl. Rys. v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28; State ex rel. American Bankers Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924. (2) Where the jurisdiction of the inferior court rests upon facts, any error in such court in determining its jurisdiction can be corrected by appeal, and prohibition will not lie. State ex rel. Crouse v. Mills, 231 Mo. 493, 133 S.W. 22; State ex rel. American Pigment & Chemical Co. v. Shields, 237 Mo. 329, 141 S.W. 585; Coleman v. Dalton, 71 Mo.App. 14; State ex rel. Frank v. Porterfield, 221 Mo.App. 847, 285 S.W. 786; State ex rel. Holthaus v. Holtcamp, 218 Mo.App. 440, 277 S.W. 607; State ex rel. Federal Reserve Life Ins. Co. v. Wright, 88 S.W.2d 427. (3) An executive officer who refuses to do what he should do may be reached by mandamus, and, if he attempts to do what he should not do, he is amenable to injunction. Secs. 4902, 4905, 4913, 4932, 4947, R.S. 1939; State ex rel. v. Johnson, 234 Mo. 338, 137 S.W. 595; Carson v. Sullivan, Secretary of State, 284 Mo. 353, 223 S.W. 571; State ex rel. v. Roach, 190 S.W. 277; State ex rel. v. County Court, 91 Mo. 452, 3 S.W. 844; State ex rel. v. Saline County, 51 Mo. 350; Killian v. Brith Sholom Congregation, 154 S.W.2d 387; Easley Town Council v. Pegg, 41 S.E. 18, 63 S.Ct. 98. (4) Writ of certiorari to review proceedings brings up for review only the record and does not bring up the evidence upon which the court acted, nor can the reviewing court hear further evidence. State ex rel. Bentley v. Reynolds, 190 Mo. 578, 89 S.W. 877. (5) The Circuit Court of Jackson County, Missouri, has jurisdiction over the relator, Supervisor of Liquor Control of Missouri, personal service having been duly had upon said relator in Jackson County, Missouri, at time of filing injunction suit, in compliance with the venue and service of writ statutes. Secs. 871, 880, R.S. 1939; State ex rel. Gardner v. Hall, 282 Mo. 426, 221 S.W. 708; State ex rel. State Highway Comm. v. Bates, 317 Mo. 696, 296 S.W. 418; Ward v. Public Serv. Comm., 341 Mo. 227, 108 S.W.2d 136; State ex rel. v. Mo. Workmen's Comp. Comm., 234 Mo.App. 384, 132 S.W.2d 683, l.c. 685. (6) The case at bar presents a moot question and an abstract proposition of law. Personal Finance Co. v. Day, 349 Mo. 1139, 164 S.W.2d 273.

OPINION

Tipton, J.

This case comes to the writer on reassignment. It is an original proceeding in prohibition by which relator, Supervisor of the Department of Liquor Control of Missouri, seeks to prohibit respondent from proceeding to hear and determine an injunction action pending in his court styled, "State of Missouri ex rel. Vivian Bailey, doing business as Vicky's Skyhigh Tavern, plaintiff, vs. W. G. Henderson, Supervisor of Liquor Control of the State of Missouri, defendant." In that action, the respondent, without notice, issued a temporary restraining order prohibiting this relator from enforcing his orders suspending two intoxicating liquor licenses issued to the plaintiff herein at two taverns located in Kansas City, Missouri.

The facts are that on December 10, 1943, a hearing was had upon two citations issued by relator to plaintiff to inquire into the charges: first, that on November 18, 1943, she had intoxicating liquor stored off the premises covered by her license, without having first notified the relator that she had possession of intoxicating liquor which was not kept upon the premises covered by her permit; second, that she had purchased liquor from persons other than wholesale dealers licensed by the State of Missouri; and, third, that she had in her possession intoxicating liquor which did not have thereon excise stamps furnished by the relator. At this hearing, at which plaintiff appeared and presented witnesses, relator found her guilty and entered an order suspending her two intoxicating liquor licenses for sixty days, starting January 3, 1944.

In plaintiff's petition, she does not allege that she was not given a legal hearing before relator. In fact, relator complied with Sections 4889 and 4905 of R.S. (Mo.) 1939. This is not disputed, but her petition does allege relator "arbitrarily, capriciously, wilfully, wrongfully, and unlawfully issued" the orders of suspension of plaintiff's liquor licenses.

It is clear that plaintiff was attempting to contend that the relator decided the case wrong and that respondent should try the issue on the merits. The petition contained no allegations of fraud. Sections 4889 and 4905, supra, vest in the Supervisor, or relator, the exclusive power to revoke or suspend licenses. The decision of the Supervisor on the merits is final, and the Statute does not allow an appeal or writ of error. In discharging that function, he exercises a judicial discretion which cannot be controlled by injunction or mandamus. State ex rel. Renner v. Noel, Supervisor of Liquor Control, 346 Mo. 286, 140 S.W.2d 57. "Courts of Equity will not sit in review of proceedings of subordinate tribunals; and, where matters are left to the discretion...