State v. Seebold

• Decision Date: 22 December 1905
• Parties: STATE v. SEEBOLD.
• Court: Missouri Supreme Court

91 S.W. 491

192 Mo. 720

STATE v. SEEBOLD.

Supreme Court of Missouri.

December 22, 1905.

1. INTOXICATING LIQUORS — LICENSE — EXCISE COMMISSIONER — STATUTORY PROVISIONS.

Rev. St. 1899, § 3019, creates the office of excise commissioner in cities having a population of 200,000. Section 3021 authorizes him to revoke any license of a dramshop keeper who shall violate any provisions of the law governing dramshops. Section 3011 prohibits the sale of liquors on Sunday, and on conviction thereof provides for a fine and forfeiture of the license. Held, that the authority of the excise commissioner to revoke a license for violation of the law prohibiting sales on Sunday does not depend on the fine or forfeiture imposed by section 3011.

2. CONSTITUTIONAL LAW — RIGHT TO RAISE CONSTITUTIONAL QUESTION.

Since the revocation of a license is not punishment within the meaning of the law, and since the right to sell liquor is not a personal or property right, a dramshop keeper is not entitled to question the constitutionality, as a local or special act, of Rev. St. 1899, § 3021, authorizing the revocation of his license for violation of the law prohibiting sales of liquor on Sunday in cities of 200,000 inhabitants.

3. INTOXICATING LIQUORS — REVOCATION OF LICENSE — HARMONIZING SEPARATE PROVISIONS OF STATUTES.

Rev. St. 1899, § 3021, authorizing the excise commissioner, in cities of 200,000 inhabitants, to revoke the license of a dramshop keeper for violation of the law relating to dramshops, is not to be construed as authorizing such revocation for a sale of liquor on Sunday only on conviction thereof, in order to harmonize with section 3011, prohibiting the sale of liquor on Sunday, and providing, on conviction thereof, for a fine and forfeiture of a license.

Fox, J., dissenting.

In Banc. Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

John D. Seebold was indicted for conducting a dramshop without a license. From an order quashing the indictment, the state appeals. Reversed.

H. S. Hadley, Atty. Gen., N. T. Gentry, and Chas. P. Williams, for the State. Edw. C. Crow and Rassieur, Schnurmacher & Rassieur, for respondent.

BURGESS, J.

On the 26th day of May, 1905, the grand jury of the city of St. Louis preferred an indictment against the defendant, Seebold, charging him with having, on the 26th day of April, 1905, unlawfully sold intoxicating liquor without a license as a dramshop keeper. It was also charged, and is shown upon the face of the indictment, that said defendant, on or prior to the 16th day of April, 1905, was a regularly licensed dramshop keeper, and that said license was by the excise commissioner revoked for the reason that defendant had violated the provisions of the law governing dramshop keepers by keeping his dramshop open on Sunday. The charge, therefore, is that defendant was conducting a dramshop without a license. The indictment was transferred by the circuit court to the St. Louis court of criminal correction, as required by law. Thereafter, upon motion of the defendant, the court last mentioned quashed said indictment upon the ground that the statutes of this state confer no authority upon said excise commissioner to revoke a dramshop keeper's license issued by him for the keeping open of such dramshop on Sunday, and that therefore the action of the excise commissioner in revoking defendant's license was without authority, void, and of no effect. The state appeals.

By section 3019, Rev. St. 1899, the office of excise commissioner was created in cities then having, or which might thereafter have, a population of 200,000 inhabitants or more, and such commissioner vested with exclusive authority to grant dramshop licenses. Section 3020 of said statutes provides that if any person desiring a dramshop license shall present a petition to the excise commissioner by the requisite number of petitioners, and the applicant is a person of good moral character, the commissioner shall give to him a statement in writing that, upon payment of the license tax required by law, a dramshop license will be issued to such applicant. Section 3021 provides, among other things, that "the commissioner shall have authority to revoke any license by him granted, if the dramshop keeper to whom license has been issued shall violate any of the provisions of the laws of this state governing dramshops." The laws of this state governing dramshops are found in article 1, c. 22, Rev. St. 1899. Section 3011 of said article provides that "any person having a license as a dramshop keeper who shall keep open such dramshop, or shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday, or upon the day of any general election in this state, shall, upon conviction thereof, be punished by a fine of not less than fifty nor more than two hundred dollars, shall forfeit such license and shall not again be allowed to obtain a license to keep a dramshop for the term of two years next thereafter." The next section of this article (section 3012) provides that, whenever it shall be shown to the county court (which court receives applications for and issues dramshop licenses in the state at large) that any dramshop keeper of the county has not at all times kept an orderly house, such court shall order the license of the 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. The same section provides that the dramshop keeper shall be notified in writing of any application for the revocation of his license five days before the order shall be made.

It will be observed that power is expressly conferred upon the excise commissioner to revoke any license by him granted, if the dramshop keeper to whom license has been issued shall violate any of the provisions of the laws of the state governing dramshops (Higgins v. Talty, 157 Mo. 280, 57 S. W. 724), among which provisions are that he shall not keep open such dramshop, or sell, give away, or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday (section 3011, supra). While defendant concedes the authority of the excise commissioner to revoke the license of a dramshop keeper issued by him for keeping a disorderly house, as was held in the Higgins Case, he denies his authority to do so in this case, because he must find his authority so to do, if any he has, in the dramshop law; that for the violation of the Sunday law the county court is not given power to revoke the license, but a forfeiture of such license results in consequence of the conviction of the dramshop keeper of such violation; that, upon the other hand, the excise commissioner is, by section 3021, supra, given authority to revoke a license for any violation of the law of the state governing dramshops, which provision, if valid, and as construed by the state, would warrant the excise commissioner in revoking a license theretofore granted by him for keeping open a dramshop, or selling liquor in any quantity on Sunday, as well as for a failure to keep an orderly house. But the authority of the excise commissioner to revoke the license of a dramshop keeper in no way depends upon the fine, forfeiture, or penalty which might be imposed upon such an offender, under section 3011, Rev. St. 1899, against a dramshop keeper outside of the city of St. Louis for the violation of that statute, for the reason that the exclusive power to grant dramshop licenses in the city of St. Louis, and to revoke them, is vested in the excise commissioner; the causes for which such power of revocation may be exercised being prescribed by statute—that is, the violation of any of the provisions of the laws of this state governing dramshops.

It is fundamental that no one has a natural right to sell intoxicating liquor, because the tendency of its use is to deprave public morals, and to do so without a license from proper authority is unlawful. Austin v. State, 10 Mo. 591; State ex rel. v. Moore, 84 Mo. App. 11; State ex rel. v. Hudson, 78 Mo. 302; State v. Bixman, 162 Mo. 1, 62 S. W. 828; Black on Intoxicating Liquors, § 24. In the city of St. Louis the only authority to grant such license is vested in the excise commissioner. Section 3019, Rev. St. supra; Higgins v. Talty, supra. So it was held in the case last cited that a dramshop license is a mere permit, is not a contract between the state and the licensee in which the latter has vested rights, but is subject at all times to the police power of the state government, and may be revoked at any time it may see proper to do so for any violation of the law governing dramshops, whether the license so provide or not, and, under the statute, in the city of St. Louis the excise commissioner has authority to revoke a license of a dramshop keeper who is keeping and conducting a disorderly and disreputable dramshop, and his action in doing so is not the exercise of a judicial power. In Black on Intoxicating Liquors, § 189, it is said: "A license to sell liquor is neither a contract nor a right of property, within the legal and constitutional meaning of these terms. It 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. Hence the authority which granted the license 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. And such revocation cannot be pronounced unconstitutional either as an impairment of contract obligation, or as unlawfully divesting persons of their property or rights." Cherry v. Commonwealth, 78 Va. 375; People v....