State ex rel. Smith v. Dykeman

• Decision Date: 06 February 1911
• Citation: 134 S.W. 120,153 Mo. App. 416
• Parties: STATE ex rel. SMITH et al. v. DYKEMAN et al., Judges.
• Court: Missouri Court of Appeals

134 S.W. 120

153 Mo. A. 416

STATE ex rel. SMITH et al. v. DYKEMAN et al., Judges.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. CERTIORARI (§ 1)—NATURE AND SCOPE OF REMEDY.

Certiorari is to give relief to an injured party when the court or a body charged to have acted has proceeded without jurisdiction or has exceeded its jurisdiction or has rendered a judgment or made an order not authorized by law; but this writ cannot be used as a substitute for appeal or writ of error.

2. INTOXICATING LIQUORS (§ 108)—REVOCATION OF LICENSE—CERTIORARI.

On certiorari to review the proceedings of the county court in revoking the relator's dramshop license, the court can only examine the record certified to it, and, if by a fair construction it appears that the county court acted within its authority in revoking the license of relators, their order must stand, and, if not, it must fall.

3. INTOXICATING LIQUORS (§§ 99, 106)—LICENSE—NATURE OF RIGHTS CONFERRED—INGENERAL.

A license to sell liquor is in no sense a contract with the state, but is a mere permit to do an act that would otherwise be unlawful and is subject at all times to the provisions of the law relating thereto, whereby it may be revoked at any time for a violation of the statute.

4. INTOXICATING LIQUORS (§ 108)—LICENSES —REVOCATION—PROCEEDINGS.

In proceedings before the county court to revoke a dramshop license, no exact form of procedure is necessary except that five days' notice of the hearing must be given to the licensee, and the court in its proceedings does not conduct a judicial trial, and hence the proceedings are not required to be as formal as would be required in a judicial trial involving life, liberty, or property; all that is required being that the record shall show that the court acted within its authority.

5. INTOXICATING LIQUORS (§ 106)—LICENSES —REVOCATION—GROUND — SINGLE SUNDAY SALE.

That persons licensed to sell intoxicating liquors violated the law on one occasion by selling liquor on Sunday is not sufficient ground for a revocation of their license under Rev. St. 1899, § 3012 (Ann. St. 1906, p. 1727), which provides for a revocation of a dramshop license for not keeping an orderly house.

6. DISORDERLY HOUSE (§ 4) — NATURE AND ELEMENT OF OFFENSE.

It is essential to constitute a disorderly house that the acts resulting from its conduct must either create some disturbance or tend to promote disturbance or breach of the peace or violation of the law, or must promote immorality; and a single act of such character is not enough, but there must be a continuation of the acts at least for a short time.

7. INTOXICATING LIQUORS (§ 106)—LICENSES —REVOCATION—VIOLATION OF LAW—DISORDERLY HOUSE.

Where parties licensed to conduct a saloon rent to another a floor over their saloon to be used as a house of prostitution to be conducted in connection with the saloon, the character of a part of the building is determined by the character of the whole, and the house is a disorderly one, warranting revocation of the liquor license.

8. INTOXICATING LIQUORS (§ 108)—LICENSES —REVOCATION—PROCEEDINGS—FINDINGS.

In a hearing for the revocation of a dramshop license, it is not necessary that the court should make any specific findings of fact; a

general finding that the licensees were violating the law being sufficient.

9. INTOXICATING LIQUORS (§ 108) — LICENSES — REVOCATION — VIOLATION OF LAW — DISORDERLY HOUSE — FINDINGS.

In certiorari to review the proceedings of the county court revoking liquor license, special findings held sufficient to sustain a general finding that relators were conducting a disorderly house in violation of Rev. St. 1899, § 3012 (Ann. St. 1906, p. 1727).

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Petition by John Smith and Melvin Sherman for a writ of certiorari to review the action of C. W. Dykeman and others. Judges of the County Court of Jasper County, in revoking a dramshop license. From a judgment sustaining the proceedings of the county court, the relators appeal. Affirmed.

Clay & Davis, for appellants. Byron H. Coon, for respondents.

COX, J.

Relators were licensed dramshop keepers in the city of Joplin, and on July, 19, 1910, the county court, after a hearing upon a complaint filed by Guy T. Humes, mayor of the city of Joplin, revoked the dramshop license of relators. The relators then proceeded by certiorari in the circuit court for the purpose of having the orders of the county court revoking their license quashed and set aside. The circuit court refused to quash the proceedings of the county court, and the relators have appealed to this court.

The office of a writ of certiorari is to give relief to an injured party when the court, or a body charged to have acted to his injury, has proceeded without jurisdiction, or has exceeded its jurisdiction, or has rendered a judgment or made an order which it was not authorized by law to make; but this writ cannot be used as a substitute for appeal or writ of error. State ex rel. v. Reynolds, 190 Mo. 576, 588, 89 S. W. 877, and cases there cited. It therefore follows that we can only examine the record certified to us, and if, by a fair construction thereof, it shall appear that the county court acted within its authority in revoking the license of relators in this case, their order must stand, and, if not, it must fall.

A license to sell liquor is in no sense a contract with the state, but is a mere permit to do an act that would otherwise be unlawful, and is subject at all times to the police powers of the state government. The party receiving such a license takes it subject to all the provisions of the law relating thereto, and knows when he secures the license that it may be revoked at any time for the cause mentioned in the statute. The power to revoke in this case is lodged with the county court, and the statute merely provides that, if the licensee shall not at all times keep an orderly house, the county court may, upon the application of any person, revoke the license. No form of procedure is provided except that five days' notice of the hearing must be given the accused. In the hearing the county court merely conducts an investigation for the purpose of satisfying their own judgment as to whether or not the licensee has kept a disorderly house and are in no sense conducting a judicial trial. Higgins v. Talty, 157 Mo. 280, 57 S. W. 724. The proceedings, therefore, are not required to be as formal and exact as...