State v. Wiethaupt

• Decision Date: 04 June 1912
• Parties: STATE ex rel. DICK et al. v. WIETHAUPT et al., Justices of St. Louis County Court.
• Court: Missouri Court of Appeals

148 S.W. 429

165 Mo. App. 634

STATE ex rel. DICK et al. v. WIETHAUPT et al., Justices of St. Louis County Court.

St. Louis Court of Appeals. Missouri.

June 4, 1912.

1. INTOXICATING LIQUORS (§ 76)—LICENSE— CERTIORARI—QUESTIONS REVIEWABLE — RETURN.

The court, on certiorari, to review proceedings of record in the county court touching an application for a dramshop license, must determine the questions solely on what appears in the return of the justices of the county court.

2. INTOXICATING LIQUORS (§ 64)—DRAMSHOP LICENSE—APPLICATION—STATUTES.

Rev. St. 1909, § 7201, providing that the petition for a dramshop license shall be filed in the office of the clerk of the county court not less than 10 days before the first day of the court to which it is to be presented, and remain on file for inspection, and be by the clerk laid before the court at the first term thereafter, is mandatory and jurisdictional, in so far as it requires the filing of the petition before the first day of the court to which it is to be presented; and it is not sufficient to file a petition when the court is in session, and then dispose of it on a subsequent day of the same term, though it has remained on file 10 days, where the court remained in continual session, without adjournment to a regular or adjourned term.

3. INTOXICATING LIQUORS (§ 64)—DRAMSHOP LICENSE—APPLICATION—STATUTES.

Such section of the statute, when construed, as it must be, in connection with Rev. St. 1909, §§ 4086, 4088, 4090, providing for regular terms of the county court, authorizing special and adjourned terms, the county court has jurisdiction to grant a dramshop license at the first adjourned term after the filing of the petition therefor, provided the petition has remained on file with the clerk 10 days before the first day of the adjourned term.

4. COUNTIES (§§ 38, 52)—COUNTY COURT— JURISDICTION.

The county court is of constitutional origin, and, though not possessed of general common-law jurisdiction, it exercises judicial functions, and has inherent power to adjourn from time to time.

5. EVIDENCE (§§ 48, 82)—JUDICIAL NOTICE— PRESUMPTION.

The Court of Appeals judicially knows that the county court convenes in pursuance of the statute in regular term on the first Monday in February, and unless an adjournment thereafter appears the law presumes that the session continues until March 4th, following.

6. INTOXICATING LIQUORS (§ 64)—ISSUANCE OF DRAMSHOP LICENSE — STATUTORY AUTHORITY.

Where an application for a dramshop license was filed in the office of the clerk of the county court on February 17th, while, under the statute, the regular term of the court began on the first Monday in February, a dramshop license issued March 4th was invalid, under Rev. St. 1909, § 7201, providing that the petition for a license shall be filed not less than 10 days before the first day of the court to which it is to be presented, and remain on file and be by the clerk laid before the court at the first term thereafter; the record of the county court reciting the holding of a session of the February term on March 4th.

7. COUNTIES (§§ 53, 57)—COUNTY COURT— JURISDICTION—PRESUMPTIONS.

The county court is one of inferior and limited jurisdiction, and presumptions are not indulged in aid of its proceedings; but all matters pertaining to its jurisdiction over the subject-matter must affirmatively appear on the face of its records, or the judgment may be quashed.

8. COURTS (§ 231) — COURT OF APPEALS — CONFLICTING DECISIONS—TRANSFER TO SUPREME COURT.

Where a judgment given by the St. Louis Court of Appeals is in conflict with a decision of the Kansas City Court of Appeals, the cause must be certified to the Supreme Court for final determination.

Reynolds, P. J., dissenting in part.

Certiorari by the State, on the relation of John Jacob Dick and another, against John Wiethaupt and others, Justices of the County Court of St. Louis County. Cause transferred to the Supreme Court for final determination.

Eliot, Chaplin, Blaney & Bedal, of St. Louis, for relators. E. W. Mills, of Clayton, and George B. Logan, for respondents.

NORTONI, J.

This is an original proceeding in certiorari. Relators sued out the writ in this court to the end of reviewing the proceedings of record in the county court of St. Louis county in the matter of the application of Charles S. Kinney for a dramshop license. In response to the writ, the justices of the county court have submitted a certified copy of the entire files and record preserved in that court touching the dramshop proceeding in question. On the return so made, the case has been argued and submitted.

The question for consideration arises from the fact that the dramshop license was ordered issued by the county court on March 4, 1912, upon a petition therefor filed in the office of the clerk of that court on February 17, 1912. It is argued that, as the statute fixes the time of the regular term of the county court on the first Monday in February, it possessed no jurisdiction to grant a dramshop license on March 4th, at an adjournment of the February term, though the petition therefor was duly filed more than 10 days before the first day of the adjourned term which acted thereon; for, it is said, the statute authorizing the county court to grant a dramshop license requires that the "petition shall be filed in the office of the clerk of the county court not less than 10 days before the first day of the court to which it is to be presented and remain on file for public inspection and by said clerk laid before the court at the first term thereafter, and all dramshop licenses issued contrary to the provisions of this section shall be void." See section 7201, R. S. 1909.

The argument advanced involves and presses forward the idea that the words "court" and at the "first term thereafter," employed in that portion of the statute quoted, refer to either a regular or special term of the county court, and that an adjourned term thereof is not included within their purview. Whatever may be the facts touching the application for and granting of the dramshop license involved here, the question in judgment is to be determined solely on what appears in the return made by the justices of the county court to the writ, for we are precluded from looking beyond that. 4 Ency. Pl. & Pr. 224; Hannibal & St. J. R. R. Co. v. State Board of Equalization, 64 Mo. 294, 308. Neither the sufficiency of the return nor its verity with respect to setting forth the true state of the record in the county court is challenged. From the return it appears that Kinney filed his application and a voluminous petition with the clerk of the county court of St. Louis county, on the 17th day of February, 1912, and prayed the issuance of a license to maintain a dramshop in Central township of that county at a place therein mentioned and described. A certified copy of the order of the court showing the presentment, consideration and allowance of the dramshop application is copied in full in the return. From this order it appears that at the February term, 1912, on the 4th day of March, 1912, the county court was in session. This order recites that the petition of Charles S. Kinney for a dramshop having been on file for 10 days in the office of the clerk for public inspection was presented to the court for consideration, etc. After having fully considered the petition, it was adjudged sufficient, the applicant qualified, etc., and the license ordered issued. The statute (section 7201, R. S. 1909) concerning dramshop licenses and conferring authority on the county courts with respect to granting the same provides that the "petition shall be filed in the office of the clerk of the county court not less than 10 days before the first day of the court to which it is to be presented and remain on file for public inspection and by said clerk laid before the court at the first term thereafter, and all dramshop licenses issued contrary to the provisions of this section shall be void."

We concur in the view expressed in State ex rel. Campbell v. Heege, 37 Mo. App. 338, to the effect that this statute is mandatory in so far as it requires the filing of the petition before the first day of the court to which it is to be presented. In other words, it will not suffice, on the petition being filed when the court is in session, for the court to take it up and dispose of it on a subsequent day of the same term, though it has remained on file 10 days, if it appears the court remained in continuous session without adjournment to a regular or adjourned term. The provision of the statute requiring the petition to remain on file in the office of the clerk for 10 days before the first day of the court to which it is to be presented is obviously mandatory and jurisdictional, for it stipulates an element of notice as for inspection. See State ex rel. Waggoner v. Seibert, 97 Mo. App. 212, 71 S. W. 95. But, though such be true, we are not prepared to accede to the view that the petition must remain on file more than 10 days before a regular term of the county court.

This statute must be interpreted to some extent in pari materia with other statutes providing for regular terms, adjourned terms, and special terms of the county court for, obviously, the Legislature had the prior state of the law with respect to the terms of the county court in mind at the time it enacted section 7201, touching applications to the county court for dramshop licenses. Ordinarily, we would incline to the view that the statute concerning applications for licenses referred to the regular term of the county court alone but when this statute is considered along with others specifying the different terms of the county court, which are well known in our law, a different aspect of the subject is revealed. Moreover, the provisions of section 7201, as to applications to the county court for dramshop licenses, should be considered, too, with a...