State ex rel. Kavanaugh v. Henderson

• Decision Date: 25 March 1943
• Docket Number: 37995
• Citation: 169 S.W.2d 389,350 Mo. 968
• Parties: State of Missouri at the relation of Elinor Kavanaugh, Respondent, v. Wayne G. Henderson, Supervisor of Liquor Control, Appellant
• Court: Missouri Supreme Court

169 S.W.2d 389

350 Mo. 968

State of Missouri at the relation of Elinor Kavanaugh, Respondent, v. Wayne G. Henderson, Supervisor of Liquor Control, Appellant

No. 37995

Supreme Court of Missouri

March 25, 1943

Appeal from Cole Circuit Court; Hon. Sam Blair, Judge.

Reversed and remanded (with directions).

Roy McKittrick, Attorney General, and Ernest Hubbell, Assistant Attorney General, for appellant.

(1) The copies of invoices here involved are not public records because they are not required by law to be kept by appellant are not used by appellant in the performance of his duties are not necessary to be kept by appellant or in any way useful to him in the performance of his duties, and because they do not relate to the duties of appellant. Robinson v. Fishback, 93 N.E. 666, 175 Ind. 132; Ann. Cas. 1913B, 1271, L. R. A. 1917B, 1179; Fidelity Trust Co. v. Clerk of Supreme Court, 47 A. 451, 65 N. J. L. 495; 53 C. J., sec. 1, pp. 604, 605; Burton v. Tuite, 44 N.W. 282, 78 Mich. 363, 7 L. R. A. 73; State v. Ewert, 52 S.D. 619, 219 N.W. 817; People v. Purcell, 70 P. 706; Clement v. Graham, 63 A. 146, 78 Vt. 290, Ann. Cas. 1913B, 1208; State ex rel. Watkins v. Macon County Court, 68 Mo. 29; State ex rel. Frank v. Becker, 9 S.W.2d 153; State ex rel. Cranfill v. Smith, 48 S.W. 891, 893, 330 Mo. 252, 81 A. L. R. 1066; Secs. 4875, 4889, 4900, R. S. 1939; 39 Words & Phrases (Perm. Ed.), 808; 44 Words & Phrases (Perm. Ed.), 283; Homan v. Employers Reinsurance Corp., 136 S.W.2d 289, 345 Mo. 650, 127 A. L. R. 163; State ex rel. Igoe v. Joynt, 110 S.W.2d 737, 341 Mo. 788; State, etc., ex rel. Martin v. Stoner, 146 S.W.2d 891; Gum v. Wolfinbarger, 93 S.W.2d 667, 338 Mo. 968. (2) The appellant had a legal right, in the exercise of his lawful discretion, to abandon, cease and discontinue obtaining, receiving and keeping said copies of invoices. State ex rel. Shartel v. Humphreys, 93 S.W.2d 924, 338 Mo. 1091; State ex rel. Whitehead v. Wenom, 32 S.W.2d 59, 326 Mo. 352; State ex rel. Eggers v. Brown, 134 S.W.2d 28, 345 Mo. 430. (3) The fact alleged in the first amended return, that appellant, after service of the alternative writ and before issuance of the peremptory writ, abandoned, ceased and discontinued obtaining, receiving and keeping said copies of invoices -- constituted a complete legal defense to this suit. Therefore, the demurrer should have been overruled, and judgment should have been for the appellant. High on Extraordinary Remedies (3rd Ed.), sec. 475, p. 456; State ex rel. Sharp v. Weeks, 93 Mo. 499, 6 S.W. 266; State ex rel. Kendall v. Wilson, 151 Mo.App. 719, 132 S.W. 623; State v. Dixon, 73 S.W.2d 385, 335 Mo. 478; 38 C. J., sec. 56, p. 582.

Thos. H. Henson for respondent.

(1) The information contained on the copies of the invoices or in the ledgers in the office of the Department of Liquor Control, so far as it is necessary to the reports of the respondent, is of a public nature and is required by law to be kept. Secs. 4875, 4889, 4900, 4947, R. S. 1939; Laws 1935, p. 278; Burton v. Tuite, 7 L. R. A. 73, 78 Mich. 363, 44 N.W. 282; Clement v. Graham, 63 A. 146, 78 Vt. 290, Ann. C. 1913B, 1208; State ex rel. Eggers v. Brown, 134 S.W.2d 28, 345 Mo. 430; People v. Peck, 138 N.Y. 386, 20 L. R. A. 381; Commonwealth v. Blair, 5 Pa. Dist. 488; Regulation No. 16 of the Rules and Regulations of the Supervisor of Liquor Control of the State of Missouri. (2) Appellant can not annul and cancel Regulation 16 and plead that fact in his return if in doing so he acted capriciously, or in bad faith and abused his discretion, if any, for the mere purpose of prevailing against the respondent in this case. State ex rel. Shartel v. Humphreys, 93 S.W.2d 924, 388 Mo. 1091; State ex rel. Adamson v. Lafayette County Court, 41 Mo. 222; State ex rel. Dolman v. Dicky, 280 Mo. 536, 219 S.W. 363; State v. Beyers, 41 Mo.App. 503; In re Rebecchi, 100 N.Y.S. 513.

OPINION

Tipton, J.

This is an appeal from the circuit court of Cole County, Missouri, wherein that court issued a peremptory writ of mandamus compelling the appellant, as Liquor Supervisor, to make all of the invoices, ledger-book entries, and reports heretofore filed and kept in that office, available to the respondent for inspection, and in the future, obtain, file, and keep the aforesaid invoices and reports, and make the same available to the respondent for inspection and copying, at reasonable times. From this judgment, the appellant has duly appealed.

The essential facts in this case are as follows: That the appellant became Supervisor of Liquor Control on July 15, 1941; and that his predecessor had issued Regulation Number 16, which required distillers, wine manufacturers, and wholesale liquor dealers to make monthly reports to him showing: (1) the total amount by gallons of spirituous intoxicating liquor sold and shipped in Missouri; (2) the kind of such liquor so sold, that is, whether the same was whiskey or wine, etc.; (3) by whom such liquor was so sold; (4) to whom such liquor was so sold; (5) the trade name or brand of such spirituous intoxicating liquor; and (6) the quantity or volume of bottles and containers in which such liquor was so sold, that is, whether the same were one-half gallons, quarts, pints, etc.

Shortly after the appellant became Supervisor, he refused to permit the respondent to inspect or make a copy of the records of this office. The respondent had been making a copy of the records made pursuant to Regulation Number 16, and had been selling this information to liquor dealers.

On August 8, 1941, the respondent filed this mandamus proceeding in the circuit court of Cole County, Missouri, and on November 5, 1941, the appellant filed his first amended return, which stated that on October 28, 1941, he cancelled and annulled Regulation Number 16, and on that date, issued and promulgated another Regulation known as Regulation Number 21, which was the same as Regulation Number 16, except that it did not require the last two facts in Regulation Number 16 to be reported to him, namely; "the trade name or brand of spirituous intoxicating liquor sold in the State of Missouri," and "the quantity or volume of bottles and containers in which said liquor was so sold, that is, whether the same were one-half gallons, quarts, pints, etc."

In his brief in this court, the appellant concedes the respondent is entitled to inspect and copy all reports heretofore made pursuant to Regulation Number 16, and all reports made or hereafter made pursuant to Regulation Number 21, for the reason he admits they are public records, but he contends the peremptory writ is erroneous in requiring him to get reports of the (a) trade name or brand of spirituous intoxicating liquor so sold and (b) the volume of bottles and containers in which said liquor was so sold, that is, whether the same were one-half gallons, quarts, pints, etc., for the reason that there is no statute requiring him to keep such records, or, in other words, a record of the invoice of the liquor so sold.

Respondent contends the appellant must keep a record of the invoices under Sections 4875, 4889, 4900, 4911, and 4947 of Revised Statutes of Missouri, 1939.

The pertinent parts of these sections are as follows: Section 4875, R. S. Mo. 1939, provides:

". . . The supervisor of liquor control shall keep a record of all intoxicating liquor manufactured, brewed, or sold in this state by every brewery, distiller, manufacturer, distributor, or wholesaler."

Section 4889 provides:

"The supervisor of liquor control shall have the authority . . . to make the following regulations (without limiting the generality of provisions empowering the supervisor of liquor control as in this act set forth) as to the following matters, acts and things; fix and determine the nature, form and capacity of all packages used for containing intoxicating liquor of any kind, to be kept or sold under this act; prescribe an official seal and label and determine the manner in which such seal or label shall be attached to every package of intoxicating liquor so sold under this act; this includes prescribing different official seals or different labels for the different classes, varieties or brands of intoxicating liquor . . ."

Section 4900, R. S. Mo. 1939, provides:

"(f) Every manufacturer, distiller and wholesale dealer in this state, shall, . . . at the time of shipping or delivering such liquors, make a true duplicate invoice of the same, showing the date, amount and value of each class of such liquors shipped or delivered, and retain a duplicate thereof, subject to the use and inspection of the supervisor of liquor control and his representatives for two (2) years."

Section 4911, R. S. Mo. 1939, provides:

"No person holding a license or permit shall sell malt liquor, or any other intoxicating liquor in this state, or shall offer for sale any such malt liquor, or other intoxicating liquor, whatsoever, brewed, manufactured or distilled by one manufacturer, in substitution for, or with the representation that any such malt liquor or other intoxicating liquor, is the product of any other brewer, manufacturer or distiller."

Section 4947, R. S. Mo. 1939, provides:

"Every person, firm, partnership or corporation who shall keep or store any intoxicating liquor in any warehouse, or other storage place in this state, shall at the time such liquor is received and stored, notify the supervisor of liquor control and furnish to him a list of the kind and quantity of such intoxicating liquor, and the name and address of the owner thereof, and upon the withdrawal of said intoxicating liquor, or any part thereof, shall notify said supervisor and furnish to him the name and address of the person to whom such intoxicating liquor shall be...