State ex rel. Verble v. Haupt
| Decision Date | 03 February 1914 |
| Citation | 163 S.W. 532,181 Mo.App. 18 |
| Parties | STATE ex rel. SIDNEY VERBLE, Petitioner, v. M. L. HAUPT et al., Respondents |
| Court | Missouri Court of Appeals |
WRIT MADE ABSOLUTE.
Preliminary rule made absolute.
E. C Crow, U. A. Dempsey and Edw. D. Hays, for relator.
The petition of Holt and Dalton, while limiting its prayer to the revocation of the license, does, in fact, seek to reopen and review the judgment of the county court rendered at a former term and to set aside and annul said judgment. Verble's motion to strike out was leveled at matters in the petition of Holt and Dalton over which the court had no jurisdiction. The court overruled the motion and declared its purpose, by record entry, to grant a hearing on all matters alleged in the petition. The court thereby committed itself to a review and retrial of the questions of fact determined in its judgment granting the license, which judgment had been rendered at a former term. (a) The laws of Missouri vest no authority in the county court to revoke a saloon license except under the provisions of section 7218. Sec. 7218, R. S Mo. 1909; State ex rel. Hallway v. Hollrah, 160 S.W 578. (b) A judgment cannot be set aside on the ground that witnesses falsely testified as to issues settled by the judgment, unless the party obtaining the judgment deceived the other party as to how the witnesses would testify. Railroad v. Mirrieless, 182 Mo. 126; Irvine v. Leyh, 124 Mo. 366; Irvine v. Leyh, 102 Mo. 207; Oxley Stave Co. v. Butler Co., 121 Mo. 614; Murphy v. DeFrance, 101 Mo. 151; Hamilton v. McLain, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 11; Hunter v. Railroad, 149 Mo.App. 243; Black on Judgments (2 Ed.), sec. 370-372. (c) A judgment will not be set aside because it was founded on perjured evidence, or for any fraudulent matter which was actually presented and decided in the judgment assailed. Hamilton v. McLean, 139 Mo. 678-687. (2) The county court is not a court of equity. A county court acts judicially in determining whether a petition for a dramshop is properly signed, and its judgment is conclusive except in a direct proceeding to set it aside for intentional wrong or fraud. And such proceeding must be had in a court of equity. State ex rel. Heller v. Thornhill, 160 S.W. 558; Kochtitzky v. Herbst, 160 Mo.App. 443; Black on Judgments, sec. 274. (3) Prohibition is the proper remedy to keep a court within the limits of its power in any particular matter, as well as to prevent the excess of jurisdiction in a cause not given to it by law. State ex rel. v. Judah v. Fort, 210 Mo. 512; State ex rel. v. Foster, 187 Mo. 590; State ex rel. v. Elkin et al., 130 Mo. 90; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Fort, 178 Mo. 518; State ex rel. Hallway v. Hollrah, 160 S.W. 578; High on Ex. Rem., sec. 772, sec. 781; 32 Cyc. 602.
Thomas F. Lane for respondents.
(1) The county courts of this State are invested with original and exclusive jurisdiction in the matter of granting, refusing to grant, and in revoking a dramshop license; and in exercising any, or all of the powers vested in them under the dramshop laws of this State, the county courts act in their ministerial capacity, and do not exercise a judicial function. Art. I, Chap. 63, R. S. 1909; Barnett v. Pemiscot County, 111 Mo.App. 693; Higgins v. Talty, 157 Mo. 280; Black on Intoxicating Liquor, sec. 362, p. 1411; State v. Seebold, 192 Mo. 720; State v. Kirk, 112 Mo.App. 447; State v. Luchta, 130 Mo.App. 284. (2) It being conceded by the petition of plaintiff and all the other facts in the case at bar, that the proceedings in the county court were seeking, merely to revoke the dramshop license of plaintiff, the county court in proceeding to the exercise of that right and power under the statute, was performing a ministerial duty, in furtherance of the police power of the State in the regulation of the liquor traffic, which is unlawful, and only permitted to be carried on under a license, which is issued and controlled by the county courts. Barnett v. County Court, supra. (3) Prohibition will not lie, to interfere with the performance of a ministerial act or duty; the act sought to be prohibited must be judicial in its nature. The writ will be issued only to restrain the acts of a court, or other inferior tribunal exercising judicial power, which it has no legal authority to exercise at all. Bailey on Habeas Corpus and other Special Remedies, 1913, secs. 355, 356; State v. Clark County, 41 Mo. 44; Casby et al. v. Thompson, 42 Mo. 133; Vitt v. Owens et al., 42 Mo. 512; Hockaday v. Newsome, 48 Mo. 196; Higgins v. Talty et al., 157 Mo. 280; State ex rel. v. Police Commissioners, 16 Mo.App. 48; Bailey on Habeas Corpus, secs. 362, 364; State ex rel. v. Bollinger, 219 Mo. 204; Bacon Mo. Practice, sec. 1062; State ex rel. v. Burckhardt, 87 Mo. 533; State ex rel. v. Moehlenkamp, 133 Mo. 134; State ex rel. v. Hickmen, 85 Mo.App. 198; State ex rel. v. Fort, 107 Mo.App. 328; Barnett v. County Court, 111 Mo.App. 693. (4) In the present case the county court had original and exclusive jurisdiction of the subject-matter of the controversy, that is, the question of the revocation of a dramshop license, which said court had prior thereto issued to Verble, the plaintiff herein; it had jurisdiction of the person of defendant Verble, both by notice and voluntary appearance. Where the court or other inferior tribunal has jurisdiction of the subject-matter, and the defendant is duly served with process, or voluntarily appears, the writ of prohibition will not be granted. Bailey on Habeas Corpus and other Special Remedies, 1913, sec. 356; In re Cooper, 143 U.S. 472, 36 Law Ed. 232.
Prohibition. Original Proceeding.
This is a proceeding in prohibition issued by virtue of the original jurisdiction of this court, under the Constitution, pertaining to such matters.
The writ is directed to the county court of Cape Girardeau county and the judges thereof, for it pertains to a proceeding pending in that court whereby it is sought to revoke a dramshop license.
The petitioner, Sidney Verble, owns and maintains a dramshop at No. 723 S. Fountain street in the city of Cape Girardeau. Several citizens filed a petition in the county court of that county seeking to revoke Verble's dramshop license on numerous grounds therein set out. Among other things, this petition so filed contains averments of matter which was adjudicated at the time the dramshop license was issued, and seeks a revocation of the license thereon. It is to prohibit the county court from proceeding with respect to this matter so averred that the prohibition is sued out here, on the theory that, though the county court possesses authority to revoke dramshop licenses, no jurisdiction whatever to do so obtains in that tribunal at a subsequent term after issuing the license, on the grounds that the court was deceived or imposed upon when the license was issued, and that the county court, in attempting to do so, is exercising a judicial function beyond its power, in pursuing a course that may result in vacating a valid judgment given at a prior term.
It appears that Sidney Verble, the petitioner, filed his application for a dramshop license in the office of the clerk of the county court of Cape Girardeau county in the month of September, 1913, and more than ten days before the meeting of the county court in October, as the statute requires. On the seventh day of October, and during the August term of the county court, this petition for a dramshop license was taken up and considered by the court. The record reveals that a remonstrance on the part of certain citizens was filed therein and that a trial of the matter was had. The court found the issue for Verble, and in its judgment given October 7, 1913, recited all of the facts jurisdictional and otherwise, entitling him to a dramshop license. Among other things the court found that Verble was a law-abiding, assessed, tax-paying citizen, more than twenty-one years of age, possessing the qualifications to own and conduct a dramshop; that his petition was signed by a majority of the assessed taxpaying citizens and guardians of minors owning property in the block where the dramshop was to be kept, etc., etc. Having found and recited all of the essential facts, the court by its judgment approved Verble's petition and ordered that a license to maintain a dramshop at 723 S. Fountain street in the city of Cape Girardeau be issued to him. Verble paid the license tax, necessary fees, qualified by giving the bond required, filing his statements contemplated by the statute, etc., and performed all of the conditions on his part entitling him to proceed in the business of a dramshop keeper under the license so granted. There is no controversy with respect to the sufficiency of the records of the county court pertaining to the matter of Verble's application for and the finding and judgment granting him the license as a dramshop keeper. Thereafter the county court adjourned to court in course. The next regular term of the county court convened in pursuance to law on the first Monday in November, 1913. Thereafter and during such subsequent or November term of the county court, Ivan Lee Holt and L. L. Dalton, citizens of Cape Girardeau, filed their petition in the county court, praying such court to revoke the dramshop license so issued at the prior or August term of the court in October to Verble on several grounds set out in such petition. So much of that petition as is relevant to the questions involved is copied here and the portion italicized is for immediate consideration. It is charged therein of and concerning the petition and...
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