State v. Anderson

• Decision Date: 02 February 1937
• Docket Number: No. 24359.,24359.
• Parties: STATE ex rel. SPENCER v. ANDERSON.
• Court: Missouri Court of Appeals

101 S.W.2d 530

STATE ex rel. SPENCER v. ANDERSON.

No. 24359.

St. Louis Court of Appeals. Missouri.

February 2, 1937.

As Modified on Denial of Rehearing February 23, 1937.

Appeal from St. Louis Circuit Court; John W. Joynt, Judge.

"Not to be published in State Reports."

Certiorari proceedings by the State, at the relation of William Spencer, against Thomas L. Anderson, excise commissioner of the city of St. Louis. From an adverse judgment, Thomas L. Anderson, excise commissioner of the city of St. Louis, appeals.

Judgment reversed and cause remanded with directions.

Edgar H. Wayman, City Counselor, and Oliver Senti, Associate City Counselor, both of St. Louis, for appellant.

George L. Vaughn, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal from the judgment of the circuit court of the city of St. Louis in a proceeding in certiorari sued out at the relation of one William Spencer, and directed to Thomas L. Anderson, the excise commissioner of said city.

Relator operates a "5% beer" tavern or saloon at 3761 Finney avenue in the city of St. Louis under a license issued pursuant to Ordinance No. 40630 of said city, which ordinance (according to the averments in relator's petition for the writ) invests the excise commissioner "with power and authority * * * to hear and determine complaints against persons operating taverns and inns under a license issued by said city, and to revoke the same."

It is a conceded fact that on May 11, 1936, the excise commissioner caused due notice to be served upon relator, advising him that complaints of "disorderly place" and "no visibility" had been lodged against the continuance of the operation of his place of business, and ordering him to appear at the office of the excise commissioner at 10 o'clock a. m. on May 21, 1936, for a hearing to show cause why his license should not be revoked.

Pursuant to such hearing, the excise commissioner found relator guilty as charged and revoked his license; and it was to secure a judicial review of such proceeding that relator petitioned the circuit court for the issuance of its writ of certiorari, his theory being that the procedure to be followed in such matters was governed and controlled by section 32 of the ordinance in question, which counsel agree is as follows:

"Before revoking or suspending any licenses granted hereunder, the Excise Commissioner shall give the licensee at least ten days' written notice of any complaint or charge against him and the nature of such complaint or charge, and shall fix the date for the hearing on said complaint or charge, upon which hearing the licensee shall have the right to have counsel and to produce witnesses in his behalf. If the Excise Commissioner shall, after such hearing, revoke or suspend the license of such licensee, his decision and action thereon shall be reviewable in the Circuit Court by a writ of certiorari filed by the licensee so affected within ten days after said decision."

We may mention in passing that the excise commissioner assails the validity of said ordinance in so far as it purports to fix and determine the power and jurisdiction of the circuit court to review his decisions and actions by certiorari; and in the final analysis the issue thus presented will be found to be the decisive feature of the case as it affects and controls the question of the legitimate scope of the lower court's review. In other words, if the city should be held to be authorized to prescribe by ordinance the manner in which the decisions and actions of its excise commissioner shall be reviewed by the circuit court, and if, as the lower court seems to have held, the proceeding before it was the one contemplated by the ordinance, then it might very well be that the court was authorized to consider, as it did, the evidence heard before the excise commissioner, and determine for itself the merits of the question of the revocation of relator's license as upon a trial of the controversy anew. But if, on the other hand, the ordinance was invalid to the extent that it purported to fix and regulate the circuit court's jurisdiction on certiorari, then it would follow that it was the writ as known to the common law which was issued, under which the court's review of the decision and action of the excise commissioner would concededly be limited to the jurisdictional recitals appearing on the face of his record in its true and proper sense.

In his petition or application for the writ, after setting out the fact of the service of notice upon him, relator averred that the excise commissioner, pursuant to said notice, began the hearing of the charges against him on May 21, 1936; that he appeared before the excise commissioner, gave him his statement, and was informed by the excise commissioner that the charge of "no visibility" had not been sustained; that neither witnesses nor accusers appeared against the relator at the hearing, in consequence of which the excise commissioner continued the same until the following day at 10 o'clock a. m.; that relator inquired of the excise commissioner if he should be present at the hearing on the following day, and was informed that he might be present if he so desired; and that on the following day relator communicated with the office of the excise commissioner at 9:15 a. m. to make inquiry concerning the hearing in order to be present thereat, and was informed that the hearing had already been held.

Relator then alleged that the act of the excise commissioner in holding the hearing before the hour set for the same on May 22, 1936, deprived him of his right to face his accusers and to cross-examine them and to rebut their testimony, and thereby deprived him of his property and his right to operate under his license without due process of law; and that in revoking his license after such hearing the excise commissioner had acted wrongfully, illegally, and contrary to law.

After specifically alleging that under section 32 of the ordinance in question he was entitled to have the proceedings, actions, conclusions, and orders of the excise commissioner reviewed by the circuit court relator's prayer was that the court grant to him a writ of certiorari directed to the excise commissioner, and commanding him to certify to the court a true, perfect, and complete copy of the complaints and all other acts and proceedings in the matter aforesaid, to the end that the court might pass judgment on the legality of the action aforesaid and might enter such further orders or judgments as right and justice might require.

Upon the filing of relator's petition the court ordered its writ of certiorari to issue, to which the excise commissioner in due course made his return, wherein, after reciting that the return contained a true, perfect, and complete copy of all proceedings had before him as the same were of record and on file in his office, the following appeared:

"On the 11th day of May, 1936, a notice was duly served upon Wm. Spencer to be and appear at the office of the Excise Commissioner * * * on the 21st day of May, 1936, at the hour of 10 o'clock a. m., and then and there to show cause why the license issued to the said Wm. Spencer to sell intoxicating liquor at the premises known as 3761 Finney in said City, should not be revoked for violating ordinance No. 40630 of said City, in the manner in said notice set out.

"To-wit, operating a disorderly place and failing to comply with the section of the ordinance requiring that the inside of the bar room or tavern to be visible from the sidewalk.

"On the 21st day of May, 1936, the matter of the revocation of said license came on for hearing, the said Wm. Spencer appearing in person, testimony was submitted and the case continued to May 22nd, and the Excise Commissioner having heard and duly considered the same on May 22nd, and being fully advised of and concerning the matter, doth find that the said Wm. Spencer is guilty of violating ordinance No. 40630 by operating a disorderly place frequented by prostitutes, also in that he sold whiskey and gin although the said Spencer only had a license to sell 5% beer, and that the inside of the tavern was not visible from the sidewalk, as charged in the above-mentioned order to show cause, and it is ordered that the license to sell 5% beer at the above-mentioned premises be and the same is hereby revoked."

Along with the foregoing, there was also returned what purported to be the testimony given by two police officers at the hearing before the excise commissioner and upon which the latter had ordered that relator's license be revoked. It is the question of the right of the court to have considered this evidence upon the proceeding in certiorari that is chiefly at issue between the parties on this appeal.

At the trial of the case relator, over the objection of the excise commissioner, gave testimony by which he undertook to controvert the propriety of the latter's finding, but which the court, upon its own motion, struck out at the conclusion of the hearing, though leaving it to be considered as an offer of proof.

By its judgment the court found that relator was entitled to the relief prayed for in his petition, whereupon it quashed the return made by the excise commissioner, set aside his order revoking relator's license, and ordered that the same be restored to relator. From such judgment, and following an unavailing motion for a new trial, the appeal of the excise commissioner has been perfected in the usual course.

We have no doubt at all of the invalidity and ineffectiveness of that portion of the ordinance which undertakes to make the decision and action of the excise commissioner in revoking or suspending a license reviewable in the circuit court by a writ of certiorari filed by the licensee so affected within ten days after the decision.

The circuit court is a constitutional court of general jurisdiction (article 6, §§ 1, 22, Const. of Mo.), with...