State v. Eby

• Decision Date: 10 December 1902
• Citation: 71 S.W. 52,170 Mo. 497
• Parties: STATE ex rel. ANHEUSER-BUSCH BREWING ASS'N et al. v. EBY, Judge.
• Court: Missouri Supreme Court

71 S.W. 52

170 Mo. 497

STATE ex rel. ANHEUSER-BUSCH BREWING ASS'N et al. v. EBY, Judge.

Supreme Court of Missouri.

December 10, 1902.

INTOXICATING LIQUORS—VIOLATION OF LAW— STATUTORY AMNESTY—JURISDICTION—WRIT OF PROHIBITION—ADEQUATE REMEDY—PROCEDURE — SUPREME COURT — BEER INSPECTION LAWS—CONSTITUTIONALITY.

1. Under Const. art. 6, § 3, giving the supreme court power to issue "writs of habeas corpus * * * and other original remedial writs," the supreme court, though it has no appellate jurisdiction in misdemeanor cases, has power to issue a writ of prohibition to prevent a circuit court from trying certain misdemeanor cases.

2. Prohibition may issue from the supreme to an inferior court, to prevent the trying of certain cases, though the issue of lack of jurisdiction was not raised or pleaded in the lower court.

3. Beer Compromise Act (Acts 1901, p. 181) § 1, provided that the governor might settle all demands by the state for inspection fees on beer accruing up to a certain date under the beer inspection law (Rev. St. 1899, c. 117, art. 4), upon payment into the state treasury of a certain sum per barrel; and section 2 provided that every person who should comply with the provisions of section 1 should be relieved from all fines and penalties incurred under the beer inspection law up to such date, and barred prosecutions for violation thereof by such persons prior thereto. Held, that the act constituted a general amnesty to all complying with its provisions, and that the state was estopped to prosecute for violations of the inspection law covered by such payments.

4. Since the beer compromise act (Acts 1901, p. 181) constituted an act of general amnesty by the general assembly, and, as such, was not subject to being waived, it need not be pleaded in bar of a prosecution to which it applies.

5. Since the beer compromise act (Acts 1901, p. 181) constituted a general amnesty as to certain offenses, an attempt to try those affected thereby for the barred offenses was beyond the jurisdiction of the court, so as to justify a writ of prohibition from the supreme court.

6. The beer inspection law (Rev. St. 1899, c. 117, art. 4, § 7691) provides that a certain fee shall be paid into the state treasury by manufacturers of beer, for the inspection thereof. Such fees, in the aggregate, would amount to $500,000 per annum more than the expense of the inspection. Held, that the fee was a tax, and, as such, unconstitutional, as not being levied on a cash valuation, and as being unequal. Per Burgess, C. J., and Sherwood and Robinson, JJ.

7. The beer inspection law (Rev. St. 1899, c. 117, art. 4, §§ 7691, 7696) exacted an inspection fee from manufacturers of beer for sale in the state, which those manufacturing beer for export need not pay. Held, that it was in violation of Const. U. S. Amend. 14, as denying the manufacturer for domestic use the equal protection of the laws. Per Burgess, C. J., and Sherwood and Robinson, JJ.

8. Since the beer inspection law (Rev. St. 1899, c. 117, art. 4) is unconstitutional, criminal proceedings based thereon are without jurisdiction, and afford grounds for a writ of prohibition. Per Burgess, C. J., and Sherwood and Robinson, JJ.

9. Where the relators for a writ of prohibition would have been compelled, in case they failed to receive the relief prayed, to defend 1,203 misdemeanor cases, and, if defeated, appeal, at a cost aggregating $12,030, as well as counsel fees, the remedy of submitting to trial, and then appealing, though available, was so inadequate as to justify the application for prohibition.

10. Rev. St. 1899, § 4450, providing that the proceedings for prohibition shall be by a civil action, in which the moving party shall be plaintiff, does not apply to original proceedings for such remedy in the supreme court; the general law on the subject governing there.

In banc. Proceeding in prohibition by the state, on the relation of the Anheuser-Busch Brewing Association and others, against David H. Eby, judge of the Tenth judicial circuit. Provisional rule made absolute.

The beer inspection law (Rev. St. 1899, c. 117, art. 4, § 7691) provides that a certain fee shall be paid into the state treasury by manufacturers of beer, for the inspection thereof. Section 7696 provides that beer manufactured for export shall be examined free of charge. The fees provided for in section 7691 would result in a revenue approximating $500,000 more than the expenses of inspection.

The following is the petition referred to in the opinion:

"State of Missouri, at the Relation of Anheuser-Busch Brewing Association, a corporation, Adolphus Busch, George K. Busch, and J. D. Bowman, Relators, v. David H. Eby, Judge of the Tenth Judicial Circuit of the State of Missouri, Respondent. Come now the Anheuser-Busch Brewing Association, Adolphus Busch, George K. Busch, and J. D. Bowman, and give the court to understand and be informed that the Anheuser-Busch Brewing Association is now, and at all the times hereinafter mentioned was, a business corporation organized under the laws of the state of Missouri, and located in the city of St. Louis, Missouri, and engaged in said city in the manufacture and sale of beer; that Adolphus Busch and George K. Busch are, and at all the times hereinafter mentioned were, residents and citizens of the said city of St. Louis and officers of the Anheuser-Busch Brewing Association; that J. D. Bowman is, and at all the times hereinafter mentioned was, a resident and citizen of the city of Louisiana, in Pike county, Missouri; that the Honorable David H. Eby is, and at all the times hereinafter mentioned was, judge of the Tenth judicial circuit of the state of Missouri, of which circuit Pike county, in said state, is a part; and that he is the judge of and presides in the circuit court of said Pike county, and as such has taken cognizance and now entertains jurisdiction of 1,203 alleged informations against the relators for alleged violations of the act approved May 4, 1899, `creating the office of inspector of beer and malt liquors of the state and providing for the inspection of beer and malt liquors manufactured and sold in this state,' and is about to try these relators as defendants under said alleged informations. Relators further give the court to understand and be informed that one John W. Jump, who was at the time prosecuting attorney of said Pike county, did on the fifteenth day of March, 1901, file against these relators, as defendants, 1,203 informations for alleged violations of the act of the legislature of the state of Missouri, hereinafter referred to; that in filing said informations the said John W. Jump, prosecuting attorney of Pike county, at the time used printed blanks, and that all of the said 1,203 informations filed by him against these relators are of the same form, substance, and tenor, excepting only that they differ in the allegation of the date of the sale of the beer alleged in said informations to have been made, and in the name of the party to whom the beer was alleged to have been sold; that, with the exception of the date of the alleged sale and the name of the party to whom the sale was alleged to have been made, said informations were in the following form:

"`Information. State of Missouri, County of Pike—ss. In the Circuit Court of Pike County, Missouri, February Term, 1901. State of Missouri, Plaintiff, vs. Anheuser-Busch Brewing Association, Adolphus Busch, George K. Busch, and J. D. Bowman, Defendants. John W. Jump, prosecuting attorney within and for the county of Pike, in the state of Missouri, under his oath of office informs the court that one J. D. Bowman, on or about the 16th day of March, 1900, at and in the county of Pike, in the state of Missouri, did then and there unlawfully and willfully sell for the price of two dollars to one B. A. Pappenfort, George Anderson, eight gallons of beer, which said beer was then and there contained in a certain package, to wit, a certain vessel in which beer is usually placed for sale, commonly called "one-fourth barrel" or "keg," containing eight gallons of beer brewed and manufactured in the state of Missouri, which said package containing said beer so sold as aforesaid did not then and there, at the time of the said sale thereof, have placed upon said package the label and certificate of the said inspector of beer and malt products of the state of Missouri, certifying that said beer contained in said package or one-fourth barrel had then and there been inspected and made from wholesome ingredients, to wit, made from pure hops, or pure extract of hops, or of pure barley, malt, or wholesome yeast, or rice, against the peace and dignity of the state. And the said John W. Jump, prosecuting attorney as aforesaid, in and for the county and state aforesaid, under his oath of office aforesaid, further informs the court that one Adolphus Busch, president of, George K. Busch, general manager of, and J. D. Bowman, agent of, the Anheuser-Busch Brewing Association, a corporation, and the Anheuser-Busch Brewing Association, a corporation duly organized under the laws of the state of Missouri (said Anheuser-Busch Brewing Association being then and there the keeper and owner of a certain brewery for the manufacture and brewing of beer and other malt products within this state), on or about the 16th day of March, 1900, at and in the county of Pike and the state of Missouri, did then and there have in their possession certain beer, brewed and manufactured in the state of Missouri, and did then and there unlawfully and willfully have, receive, and offer for sale, and sell for the price of two dollars, to one B. A. Pappenfort, George Anderson, eight gallons of beer, which said beer was then and there contained in a certain package, to wit, a certain vessel in which beer is usually placed for sale, commonly called "one-fourth barrel" or "keg," containing eight gallons of beer, brewed and manufactured in...