State v. Ross

• Decision Date: 07 January 1914
• Citation: 177 Mo. App. 223,162 S.W. 702
• Parties: STATE ex rel. CARMAN v. ROSS et al., County Court Justices.
• Court: Missouri Court of Appeals

162 S.W. 702

177 Mo. App. 223

STATE ex rel. CARMAN v. ROSS et al., County Court Justices.

Springfield Court of Appeals. Missouri.

January 7, 1914.

1. INTOXICATING LIQUORS (§ 108)—LICENSES —REVOCATION—CERTIORARI.

Certiorari is the proper and only remedy available to a dramshop keeper whose license has been illegally revoked by the county court.

2. INTOXICATING LIQUORS (§ 108)—LICENSES —ANNULMENT—REVIEW BY CERTIORARI.

The writ of certiorari to review proceedings in the county court for the annulment of a dramshop license brings up for review only the record, and does not bring up the evidence on which the court acted, nor can the reviewing court hear other evidence.

3. INTOXICATING LIQUORS (§ 108)—PROCEEDINGS TO ANNUL LICENSE—CERTIORARI.

The sole office of the writ of certiorari to review proceedings of the county court for the annulment of a dramshop license is to determine whether that court acted without any jurisdiction, or in excess of its jurisdiction.

4. INTOXICATING LIQUORS (§ 99)—LICENSES— NATURE — "CONTRACT" — "RIGHT OF PROPERTY."

A license to sell liquor is neither a "contract" nor a "right of property" within the legal and constitutional meaning of those terms, but is no more than a temporary permit to do that which would otherwise be unlawful, and forms a part of the internal police system of the state.

5. INTOXICATING LIQUORS (§ 106)—LICENSES —REVOCATION.

The authority which grants a license to sell liquor always retains the power to revoke it, either for cause of forfeiture, or upon a change of policy and legislation in regard to the liquor traffic.

6. CONSTITUTIONAL LAW (§ 136) — IMPAIRMENT OF "CONTRACT"—LIQUOR LICENSE.

The revocation of a license to sell liquor is not unconstitutional as an impairment of the contract obligation, since such license is not a "contract."

7. CONSTITUTIONAL LAW (§ 277)—DUE PROCESS OF LAW—REVOCATION OF LIQUOR LICENSE —"RIGHT OF PROPERTY."

The revocation of a license to sell liquor is not unconstitutional as unlawfully divesting one of his property or rights, since such license is not a "right of property."

8. CERTIORARI (§ 12)—GROUNDS—MINISTERIAL ACTS.

Certiorari does not reach mere ministerial acts, and hence, where the county court in proceedings to annul a dramshop license acts ministerially, and the proceeding is an investigation rather than a trial, it is not reviewable by certiorari.

9. CERTIORARI (§ 12) — GROUNDS — JUDICIAL ACTS.

It is only in determining its own jurisdiction to act on charges preferred in a proceeding to annul a dramshop license that a county court acts judicially, and hence it is only such determination that is reviewable on certiorari.

10. INTOXICATING LIQUORS (§ 108)—LICENSES —REVOCATION—FINDINGS.

In a proceeding in a county court to annul a liquor license, it is not necessary that the court should have made specific findings, but a general finding that relator was conducting a disorderly house would be sufficient, and would stand, unless the specific findings upon which it was based contradicted it or were insufficient to support it.

11. INTOXICATING LIQUORS (§ 108)—REVOCATION —PROCEEDINGS—CHARGE IN WRITING.

Charges preferred in a proceeding in the county court under R. S. 1909, § 7218, for the revocation of a dramshop license for failure to keep an orderly house, must be in writing.

12. JURY (§ 19) — RIGHT TO JURY TRIAL — REVOCATION OF LIQUOR LICENSE.

Defendant, in a proceeding under Rev. St. 1909, § 7218, to annul his dramshop license for failure to keep an orderly house, is not entitled to a trial by jury.

13. INTOXICATING LIQUORS (§ 108)—REVOCATION OF LICENSE—FORM OF PROCEEDINGS.

In a proceeding in a county court, under Rev. St. § 7218, to annul a dramshop license for failure to keep an orderly house, the court is conducting an investigation to satisfy its own judgment, and is not trying a case, and hence is not bound by the technical rules governing pleadings or proceedings in trial courts, but may be summary, and all that is required is that the record shall show that the court acted within its authority.

14. INTOXICATING LIQUORS (§ 106)—LICENSES — REVOCATION — "ORDERLY" — "ORDERLY HOUSE."

Under Rev. St. 1909, § 7218, providing for the revocation of a dramshop license for failure to keep at all times an orderly house, the word "orderly" means "observant of authority, obedient, quiet, not unruly," and carries with it the idea of restraint and the suppression of wrongdoing, rather than its permission or encouragement, and the term "orderly house" excludes all acts which annoy or scandalize the public, are contrary to and subversive of public morals, which draw together idle, vicious, or immoral persons, or invite the young and unwary to indulge in or witness anything corrupting, and hence allegations that defendant conducted his dramshop so as to attract idle, vicious, and immoral persons so as to promote immorality in violation of the law and breaches of the peace, sufficiently charged that he did not keep an "orderly" house.

15. INTOXICATING LIQUORS (§ 108)—LICENSES —REVOCATION—PROCEEDINGS.

In a proceeding in a county court under Rev. St. 1909, § 7218, to annul a dramshop license on the ground that it was not kept as an orderly house, a complaint, charging in general terms that liquor was sold on Sundays; that the place was so conducted as to attract idle, vicious, and immoral persons, to promote immorality, violations of the law, and breaches of the peace—was sufficiently specific.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Certiorari in the circuit court by the State of Missouri, on the relation of Arthur N. Carman, to annul an order of the Jasper county court, J. C. Ross and others, justices, revoking relator's dramshop license. Action of the circuit court in refusing to quash the order of the county court, sustained.

R. H. Davis, of Joplin, for relator.

STURGIS, J.

This is a proceeding in the circuit court by certiorari, having for its object the annulment of an order of the county court of Jasper county, Mo., revoking the license of relator as a dramshop keeper in Joplin. The proceeding in the county court was instituted and prosecuted by the prosecuting attorney of that county under the provisions of section 7218, R. S. 1909, for the purpose of having relator's license revoked on the ground of his having failed to keep at all times an orderly house. We regret that no brief on behalf of respondents has been filed here as an aid to this court.

The statute which is the basis of this proceeding reads as follows: "Whenever it shall be shown to the county court, upon the application of any person, that any dramshop keeper of the county has not at all times kept an orderly house, such court shall order the license of such dramshop keeper to be revoked, and from the date of such order the dramshop keeper shall be deemed to have no license, and to be without the authority of law to act as a dramshop keeper, but the dramshop keeper shall be notified, in writing, of such application, five days before the order shall be made, and costs shall be awarded against the losing party. (R. S. 1899, § 3012)."

The amended complaint filed by the prosecuting attorney charges: "That the said Arthur N. Carman as such licensee has not complied with the laws of the state of Missouri in the conduct and operation of said dramshop, but that he has violated the laws of said state, and particularly section 7218 of the Revised Statutes of 1909 of Missouri, in this: That he has not at all times kept an orderly house in the conduct and operation of said dramshop as provided in said section 7218; that he has sold and permitted to be drunk in and about said dramshop intoxicating liquors on the first day of the week, commonly called Sunday; that on the 2d day of February, 1913, said 2d day of February having been the first day of the week commonly called Sunday, and divers other Sundays previous to said 2d day of February, 1913, he permitted intoxicating liquors to be sold and drunk in and about said dramshop; that on said 2d day of February, 1913, and said divers other Sundays aforesaid, and on divers other days and times, he so conducted his dramshop in such manner as to attract idle, vicious, dissolute, and immoral persons, and in such manner as to promote violations of the law and to promote immorality; that the said Arthur N. Carman has not given the business of the aforesaid dramshop his personal attention and supervision, but he, the said Arthur N. Carman, has been engaged in a different line of business at a location other than the location of the said dramshop; that during all of the time aforesaid, one Lon Wilkerson, and one ____ Hopper, by and with the consent of the said Carman, have conducted the business of said dramshop. That the said Wilkerson and Hopper, by and with the consent of the said Carman, as aforesaid, have conducted said dramshop in a manner tending to promote immorality, violations of the law, and breaches of the peace, at the times and places as above set out." Due notice was given relator, and he appeared at the hearing. The county court heard evidence, and on due investigation made and entered its finding that said relator "as such dramshop keeper has been, since the...