State v. Mitchell

• Decision Date: 19 November 1907
• Citation: 105 S.W. 655,127 Mo. App. 455
• Parties: STATE ex rel. TUCKER et al. v. MITCHELL et al.
• Court: Missouri Court of Appeals

105 S.W. 655

127 Mo. A. 455

STATE ex rel. TUCKER et al. v. MITCHELL et al.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

1. COURTS—COUNTY COURTS—SPECIAL TERMS.

Section 1785, Rev. St. 1899, authorizing the calling of a special term whenever the business and interests of a county require it, taken in connection with section 1783, providing the terms of a county court, section 1786, providing for a notice of a special term, and section 1787 [Ann. St. 1906, pp. 1247, 1248], providing for adjourned terms, authorized the holding of a special term of the county court during the recess of its regular term, though such term has not been finally adjourned, and though there is a general doctrine that a term of court from convening till final adjournment is but a single day.

2. INTOXICATING LIQUORS — LICENSES—PROCEEDINGS TO OBTAIN—COUNTY COURT—JURISDICTION.

Section 2997, Rev. St. 1899 [Ann. St. 1906, p. 1720], relating to issue of dramshop licenses, provides that the petition must remain on file "for ten days before the first day of the court to which it is presented," and laid before the court at its "first term thereafter." Held, that the quoted words do not exclude the

jurisdiction of a special term to issue such license.

3. SAME.

A regular or adjourned term of a county court has jurisdiction to issue a dramshop license under section 2997, Rev. St. 1899 [Ann. St. 1906, p. 1720], providing for the issue of such license.

4. SAME—COSTS.

The issue of a dramshop license by a special term of the county court is not invalidated by the fact that the court taxed costs against the dramshop keeper without authority of law.

Original petition by the state, on the relation of R. C. Tucker and others, against J. D. Mitchell and others for writ of certiorari to review the action of the county court in issuing a dramshop license. Writ denied.

Merrill Pipkin, for relator. W. S. Anthony, for respondents.

NORTONI, J.

This is an original proceeding in this court. The relator, prosecuting attorney of St. Francois county, sued out a writ of certiorari, seeking to quash certain proceedings had in the county court of that county, whereby one Carter Ashlock was granted a license to keep a dramshop, and to revoke such license. It appears the dramshop license in question was granted at a special term of the county court. This special term of court was ordered and held during the period intervening between the adjournment of the regular May term and its reconvening in an adjourned term. In other words, such special term was held at a time after the regular term of such court had convened, and before it had finally adjourned to court in course, although not during any time or on any day when such regular May term was in session. It is insisted on the part of the relator that the county court duly convened in special term, under the statute, was without jurisdiction to adjudicate on the matter of the application for, and to issue the dramshop license in question, and therefore the proceedings had in said court with reference to the matter are coram non judice, in consequence of which the license is void and should for that reason be revoked.

To this end, counsel advance and rely upon three propositions, the first of which is as follows:

1. It is insisted there is no authority in the law for a special term of the county court during the period while a regular term of court is still in existence, although it may not be in session. In other words, there can be no special term of the court until after the regular term shall have been finally adjourned, even though the regular term which has not finally adjourned may have been in a state of suspension or recess for a considerable number of weeks. The argument seems to be that, so long as the regular term is not finally adjourned, it is in existence, or a continuing term, which is no doubt true in a sense, and therefore the notion that a special term could be holden while a regular term is continuing is inconsistent in itself. The record discloses the county court convened in regular term on Monday, May 6, 1907, and for several days adjourned from day to day. Under regular and proper orders of adjournment, the regular May term was in session on May 17th, on which date it adjourned to Monday, June 3d, as appears by the following order of record: "May Term, 1907. State of Missouri, County of St. Francois — ss.: In the county court of said county, on the 17th day of May, 1907, the following among other proceedings were had, viz.: Court adjourned until Monday, June 3rd, 1907. J. D. Mitchell, Presiding Judge." It therefore appears the regular May term of the court, although not finally adjourned, was in recess or in a state of suspension from May 17th to June 3d, and during this recess, on May 20th, Carter Ashlock filed his proper petition for a dramshop license in the office of the clerk of said court. Upon the filing of this petition, the president of the county court, being of the opinion that the business and interests of the county required it, exercised the authority conferred upon him by section 1785, Rev. St. 1899 [Ann. St. 1906, p. 1247], in that behalf, and ordered a special term of such court to be holden May 30, 1907, for the purpose of considering the matter of the application of said Carter Ashlock for a dramshop license, etc. The order, as made by the presiding judge, is as follows: "In Vacation. Monday, May 20, 1907. Notice for Special Term of County Court. Thursday, May 30, 1907. It appearing to the satisfaction of Jefferson D. Mitchell presiding justice of the county court of St. Francois county, Missouri, that the business and interests of the county require a special term of said court, for the purpose of examining the application, petition, and bond of Carter Ashlock, for a license to keep a dramshop at his stand on part lot 11, subsurvey No. 3092 and 1864, known as the Highley stand, near the town of Desloge in Randolph township in said county. It is therefore ordered by said J. D. Mitchell, presiding justice of said county court, that a special term of said court will be begun and held at the courthouse in the city of Farmington, on Thursday, May 30th, 1907, at the cost of said Carter Ashlock, and it is further ordered that the sheriff of said county of St. Francois, cause notice to be given according to law. [Signed] J. D. Mitchell, Presiding Justice of St. Francois County Court." Notice of and for the said term was duly given as is provided in section 1786, Rev. St. 1899 [Ann. St. 1906, p. 1247]. In compliance with this order and notice the court convened in special term on May 30th, and, upon a proper showing in that behalf, it considered and acted favorably upon the application of said Ashlock for a dramshop license, etc.

From the facts stated it appears clearly that, although the regular May term was not finally adjourned, the court was not in session at the time the petition was filed, nor was it in session at any time after the filing of the petition until it convened in special term. The special term being ordered and held during a recess of the regular term, it certainly did not and could not conflict with the...