State ex rel. Pulliam v. Fort
| Decision Date | 24 May 1904 |
| Citation | 81 S.W. 476,107 Mo.App. 328 |
| Parties | STATE ex rel. PULLIAM et al., etc., Relators, v. FORT, etc., et al., Respondents |
| Court | Missouri Court of Appeals |
Writ denied and petition dismissed.
Thomas F. Lane and L. M. Atkinson for relators.
(1) The county court has original and exclusive jurisdiction to grant dramshop licenses and to examine and pass on the applications and petition for same. R. S. 1899, secs. 2993, 2997; State v. Evans, 83 Mo. 319; Austin v State, 10 Mo. 591; Bean v. Barton Co. Court, 33 Mo.App. 635. (2) The county court having original and exclusive jurisdiction to hear and determine the sufficiency of application and petitions for a dramshop license, and the writ of certiorari furnishing a complete remedy should the court err in determining the same, the circuit court is without jurisdiction to issue the writ of prohibition against the judges of said county court. High's Ex. Leg. Rem. (3 Ed.), secs. 764a, 770, 771 and 772; Spelling, Inj. Ex. Rem. (2 Ed.), secs. 1725, 1727, 1728 and 1729; Estee's Pld. (4 Ed.), sec. 5442; 2 Bailey on Jur., secs. 446, 477, 457, 467; 23 Am. and Eng. Ency. Law (2 Ed.), p. 203; State ex rel v. Hickman, 85 Mo.App. 198, and cases cited; State ex rel. Bowerman, 40 Mo.App. 576; County Court v Boreman, 34 W.Va. 87; Higgins v. Talty, 157 Mo 280. It will be admitted that the circuit court has a general superintending control of inferior courts but in exercising that control, circuit courts must be guided solely according to the principles and usages of law. Railroad v. St. Louis, 92 Mo. 160. (3) Three conditions are necessary to warrant the granting of relief by prohibition: "First, that the court, officer or person whom it is sought to restrain is about to exercise judicial or quasi-judicial powers; second, that the exercise of such power is unauthorized by law; third, that it will result in injury for which no other adequate remedy exists." Neither of the last two grounds are shown or alleged to exist in the prohibition in the circuit court and that court acted wholly without jurisdiction. Railway v. St. Louis, 92 Mo. 166; People v. Dist. Court, 6 Colo. 534; People v. Dist. Court, 19 P. 541. (4) The circuit court of said Ripley county, having no jurisdiction (or exceeding its jurisdiction) in issuing said provisional writ of prohibition against relators herein, will be prohibited by this appellate court from taking further cognizance of said cause in said circuit court. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Wood, 155 Mo. 425; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Hirzel, 137 Mo. 435. (5) Prohibition lies to prevent the exercise of unauthorized power in a cause or proceeding of which the inferior tribunal has jurisdiction, no less than when the entire action is without jurisdiction; the original design of the writ being that it should prevent an encroachment of jurisdiction. Appo v. People, 20 N.Y. 531; Sweet v. Hulbert, 51 Barb. 313; Thomas v. Mead, 36 Mo. 233; Wells on Jur. of Courts (1880 Ed.), sec. 505; 2 Cooley's Blackstone, book 3, p. --. (6) Havemeyer v. San Francisco Superior Court, 84 Cal. 327, 10 L. R. A. 627; State ex rel. v. Superior Court, 15 Wash. 668, 37 L. R. A. 111; People v. District Court, 46 L. R. A. 850. (7) Even if the circuit court has authority to issue the writ of prohibition and jurisdiction of the subject-matter, this court will prohibit the circuit court from further action in the matter as an appeal from the judgment of the circuit court will not afford an adequate remedy. High, Ex. Rem. (3 Ed.), sec. 771a; 2 Spelling, Inj. & Ex. Rem. (2 Ed.), sec. 1730; State ex rel. v. Eby, 170 Mo. 497; Railroad v. Wear, 135 Mo. 230.
J. C. Sheppard for respondents.
(1) Prohibition is a remedy only to prevent a judicial tribunal from assuming a jurisdiction which it does not possess. "It may be applied to prevent action by a court in excess of its legitimate authority in a proceeding whose subject-matter falls within the general cognizance of the court, as well as to stay an assumption of power over causes which by their nature are not confided by law to the court's consideration." State ex rel. v. Scarritt, 128 Mo. 338; State ex rel. v. Talty, 166 Mo. 529; School Dist. v. Burris, 84 Mo.App. 663. (2) Circuit courts have superintending control over county courts. R. S. 1899, sec. 1674. And power to issue writs of prohibition against them. Howard v. Pierce, 38 Mo. 296; State ex rel. Morse v. Burckhartt, 87 Mo. 537; State ex rel. v. Elkin, 130 Mo. 109; State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Cline, 85 Mo.App. 628. (3) Especially should this court not interfere with the judicial discretion of the circuit court by preventing his passing upon the application for prohibition when, should the county court grant the license illegally, there is no appeal, and the remedy by certiorari is inadequate.
Application for Writ of Prohibition.
On the petition of J. P. Campbell, A. B. Young et al., Hon. J. L. Fort, judge of the Ripley circuit court, issued a preliminary order prohibiting John A. Pulliam, A. Harper and J. M. Weatherspoon, justices of the county court of Ripley county, from considering or acting upon the application of John A. Patterson and E. Lacy for a license to keep a dramshop in Doniphan township, in said Ripley county, which application, with the petition, was filed in said county court April 21, 1904. The petition for the writ presented to Judge Fort alleged that the county court of Ripley county had no jurisdiction to act upon the petition for the dramshop license for the following reasons: First, that the petition for the license does not state a majority of the assessed taxpaying citizens of Doniphan township had signed said petition, that it does not show that a majority of the guardians of minors owning property in said township had signed the petition, and that the petition does not show that a majority of the female citizens owning property in said township had signed the petition. Second, because the petition does not state that any of the signers to the petition resided in said township or are assessed, taxpaying citizens of said township, because some of the petitioners, when they signed the petition, signed it with the understanding that it would be presented at the regular February term, 1904, of the county court of Ripley county, when in fact the petition was not filed until long after said February term.
On the petition of J. A. Pulliam et al., relators herein, we issued a preliminary order directed to Judge Fort et al., prohibiting them from taking any further steps in the matter. The respondents appeared in court by their counsel and filed their demurrer to the petition of relators. The demurrer raises two questions of law for decision, first, whether or not Judge Fort had jurisdiction to issue the preliminary writ; second, if he had no such jurisdiction or exceeded his jurisdiction, is the case of such an urgent nature as will warrant us to issue a writ of prohibition to the respondents.
Exclusive jurisdiction to issue dramshop license in all counties of the State is vested in the county courts of the several counties. Chap. 22, vol. 1, R. S. 1899. A county court in granting a license to keep a dramshop, acts judicially. State ex rel. Campbell v. Heege, 37 Mo.App. 338. As it is well-settled law in this State that under the peculiar wording of the statute in reference to dramshop license, all the facts necessary to confer jurisdiction on a county court to grant the license must appear somewhere upon the face of its proceedings. State v. Heege, supra; State ex rel. Harrah v. Cauthorn, 40 Mo.App. 94; State ex rel. Reider v. The Moniteau Co. Ct., 45 Mo.App. 387; State ex rel. v. Mayor, etc., 57 Mo.App. 192; State ex rel. v. Higgins, 71 Mo.App. 180; State v. Seibert, 97 Mo.App. 212, 71 S.W. 95.
The law (section 2997, Laws of 1891, p. 128) declares: "It shall not be lawful for any county court in this State to grant any license to keep a dramshop in any town or city containing two thousand inhabitants or more, until a majority of the assessed taxpaying citizens, and guardians of minors owning property in the block or square in which the dramshop is to be kept, shall sign a petition asking for such license." If the city, town or municipality where the dramshop is to be kept has less than two thousand inhabitants, the section provides that the petition must be signed by both a majority of the taxpaying citizens and guardians of minors owning property therein and in the block or square in which the dramshop is to be kept. The petition filed before Judge Fort seems to assume that this statute requires the petition for the license to be signed by a majority of each of three classes of persons, to-wit, a majority of the male taxpaying citizens, a majority of the female taxpaying citizens, and a majority of the guardians of minors owning property in the locality to be affected by the dramshop. The statute does not classify those who are eligible to sign such petition but groups them and provides that the petition shall be signed by a majority of the group, that is, that the male and female taxpaying citizens and guardians of minors owning property, etc., shall be counted as eligible to sign a petition, and before the county court is authorized to grant the license the petition must be signed by a majority of all the persons who are eligible under the statute to sign the petition. It is not indispensable that the petition shall purport to be signed by a majority of the taxpaying citizens and guardians of minors in the block, etc., to confer jurisdiction on the county court to grant the license. If the court...
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