State ex rel. Stoecker v. Director of Revenue, 52020

• Decision Date: 28 July 1987
• Docket Number: No. 52020,52020
• Citation: 734 S.W.2d 263
• Parties: STATE ex rel., Keith E. STOECKER, Plaintiff-Appellant, v. DIRECTOR OF REVENUE, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 263

734 S.W.2d 263

STATE ex rel., Keith E. STOECKER, Plaintiff-Appellant, v. DIRECTOR OF REVENUE, Defendant-Respondent.

No. 52020.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 28, 1987.

Eric J. Snyder, Clayton, for plaintiff-appellant.

Jeffrey R. Dahl, St. Louis, for defendant-respondent.

KAROHL, Judge.

Relator for writ of prohibition in circuit court attempts to appeal to this court from dismissal of preliminary writ. Appeal dismissed.

The underlying facts are not in dispute. Respondent administratively suspended relator's drivers license pursuant to Section 302.500-540 RSMo Cum Supp.1984 because relator was arrested by a municipal law enforcement officer on November 17, 1985 for violation of a city ordinance regarding an intoxication related traffic offense. Respondent determined that there was probable cause to believe that relator was driving a motor vehicle with alcohol concentration in his blood of .13% or more by weight. That determination was upheld in an administrative hearing. The petition for writ of prohibition filed in the circuit court contends that respondent never ascertained whether the arresting law enforcement officer was certified with the Commissioner of the Department of Public Safety pursuant to the provisions of Section 590.100-590.150 RSMo. 1978 nor whether he was an exempt officer or an elected police officer or official. Respondent further alleged that there was no evidence before the administrative hearing officer who proceeded according to Section 302.530 RSMo Cum Supp.1984 that the arresting officer was certified, exempt from certification, or an elected police officer. The only evidence at the administrative hearing was the file of the Department of Revenue. The Verified Report of Arresting Officer in respondent's files contains the following: "I am certified, or exempt from certification, by the Director of The Department of Public Safety ..." The administrative hearing officer made no finding of fact or conclusion of law that the arresting officer was certified, exempt or elected. Relator relies specifically on Section 302.510.3 which provides that a municipal ordinance prohibiting driving while intoxicated may not be the basis for suspension or revocation of a driver's license under the administrative procedure "unless the arresting law enforcement officer, other than an elected peace officer or official, has been certified by the Director of the Department of Public Safety pursuant to the provisions of Section 590.100 to 590.150, RSMo." The petition for writ of prohibition proceeds on the theory that absent a finding of qualification of the arresting officer, respondent exceeds his statutory authority to suspend or revoke a driver's license.

On the basis of the petition for writ of prohibition the circuit court granted a preliminary order in prohibition. Respondent filed an answer [sic, a return]. Respondent admitted an arrest based upon probable cause relating to blood alcohol concentration. The answer also asserted that the verified officer's report, a sworn statement, contains a statement to the effect that the officer was certified or exempt under Sections 590.100-150 RSMo 1978; that respondent had an adequate and exclusive remedy at law under Section 302.535, RSMo Cum Supp.1984; and, on the authority of State ex rel. King v. Kinder, 690 S.W.2d 408 (Mo. banc 1985) the trial court had no jurisdiction to prohibit enforcement of the suspension. Respondent also filed a motion to dismiss on the basis that the court lacked subject matter jurisdiction because of the provisions of Section 302.535 RSMo Cum Supp.1984 and the holding in Kinder.

The trial court sustained the motion to dismiss on the basis that the preliminary order in prohibition was granted in excess of the court's subject matter jurisdiction. Clearly the court did not determine any question of fact or law on the merits of any issue raised in the petition for writ of prohibition. Under these circumstances we hold no appeal lies from the order of dismissal.

There is some authority allowing an appeal from the denial of a permanent writ of prohibition after a preliminary writ has been issued. We held in State ex rel. Charter Bank of Jennings v. O'Toole, 638 S.W.2d 321 (Mo.App.1982) that an appeal from an order of a trial court quashing a preliminary writ of prohibition was not timely filed and dismissed the appeal. We there said, "[t]he order of the trial court quashing the preliminary writ is appealable. State ex rel. River Cement Co. v. Pepple, 585 S.W.2d 122 (Mo.App.1979) ." Id. at 322.

In State ex rel. River Cement Co. v. Pepple, the circuit court entered a preliminary writ of prohibition upon an administrative law judge in a workman's compensation proceeding. Relators appealed from an order quashing the preliminary writ. We noted that the order was appealable on the authority of State ex rel. Karmi v. VonRomer, 562 S.W.2d 112 (Mo.App.1978) and State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970). The administrative law judge had ordered the employer to allow claimant employee's attorney, a technical expert and a photographer to enter the premises of employer for the purpose of preparing the presentation of a worker's compensation claim. The issue was whether or not the order was authorized as a method of discovery under the Worker's Compensation Act. We found the Missouri Rules of Civil Procedure relating to discovery generally do not apply to workman's compensation cases, but affirmed the order of the circuit court. The reason for affirming was that the claimant sought relief under penalty provisions of the Worker's Compensation Act contained in Section 287.120(4), RSMo Supp. 1978 and the only way to prove violation of statutes which supported penalty relief depended upon a power to inspect. In order to fully enforce all the provisions of the Worker's Compensation Act an inspection as ordered by the administrative law judge was required. This was an appeal from the denial of an absolute writ based upon a decision on the merits.

State ex rel. Karmi v. VonRomer, 562 S.W.2d 112 (Mo.App.1...