Theodoro v. Dept. of Liquor Control

• Citation: 527 S.W.2d 350
• Decision Date: 08 September 1975
• Docket Number: No. 58980,58980
• Parties: James D. THEODORO, Respondent, v. DEPARTMENT OF LIQUOR CONTROL, State of Missouri, Appellant.
• Court: United States State Supreme Court of Missouri

Page 350

527 S.W.2d 350

James D. THEODORO, Respondent, v. DEPARTMENT OF LIQUOR CONTROL, State of Missouri, Appellant.

No. 58980.

Supreme Court of Missouri, En Banc.

Sept. 8, 1975.

G. William Weier, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for respondent.

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for appellant.

SEILER, Chief Justice.

This appeal presents issues concerning the governor's power to pardon respondent from the administrative revocation of his license to sell package liquor. This court has jurisdiction by virtue of Art. V, Sec. 3, Mo.Const.1945, in that the case involves the construction of Art. IV, Sec. 7 of the constitution of this state.

In 1967, the Supervisor of Liquor Control revoked respondent's liquor license based on findings that respondent had sold intoxicating beverages on Sunday and had permitted the sale of intoxicating beverages by a minor. That decision was affirmed in circuit court. Thereafter, in 1972, then Governor Warren E. Hearnes issued on a standard pardon form, a document purporting to 'pardon, release, and discharge' respondent from the revocation. ¹ Respondent was subsequently issued a new license for the sale of liquor, but upon application for renewal of license, the supervisor advised respondent that the license would not be renewed, the basis for his decision being Sec. 311.06(1), RSMo 1969, which provides inter alia that '. . . no person shall be granted a license or permit hereunder whose license as such dealer has been revoked . . .' The circuit court reversed the decision of the supervisor, who now appeals. We reverse the circuit court and affirm the supervisor's denial of renewal of license.

The pardon power of the governor derives from Art. IV, Sec. 7, Mo.Const.1945, which reads:

'The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to provisions of law as to the manner of applying for pardons. . . .'

The question thus presented is whether or not the governor is constitutionally empowered to 'pardon' the administrative revocation of respondent's liquor license. It is readily apparent that the language of the above provision, 'after conviction, for all offenses', speaks directly to criminal prosecutions, and in construing the constitution words are to be taken in accord with their fair intendment and their natural and ordinary meaning. State ex rel. Danforth v. Cason, 507 S.W.2d 405 (Mo. banc 1973).

That differences exist between the criminal process and the administrative process is well settled. It has been held, for example, that the revocation of a liquor license is not a criminal prosecution but is in the nature of a civil proceeding, Crooms v. Ketchum, 379 S.W.2d 580 (Mo.1964), and as such, many rights ordinarily secured to criminal defendants are not available to licensees involved in revocation proceedings, State ex rel. Sansone v. Quinn, 426 S.W.2d 917 (Mo.App.1968). Additionally, the decisions of the Supervisor of Liquor Control will be upheld if supported by competent and substantial evidence, State ex rel. Favazza v. Ketchum, 367 S.W.2d 542 (Mo.1963), and such decisions do not require proof beyond a reasonable doubt, see 2 Am.Jur.2d Administrative Law, Sec. 392.

We have found only one case, Ex parte Collins, 94 Mo. 22, 6 S.W. 345, 346 (1887) which defines 'after conviction' in the context of Art. IV, Sec. 7, although the definition was not necessary to the decision in that case. It was there stated that "after conviction' . . . means after a return of a verdict of guilty.' The Supervisor of Liquor Control is not authorized to find any person 'guilty' of a violation of the liquor control laws, and in fact, may revoke a license even though the licensee has been acquitted of a criminal charge for the same violation as is made the basis for the revocation, Crooms v. Ketchum, supra, 379 S.W.2d 587.

The power to pardon has been traditionally described in the courts of this state as a power to exempt individuals from punishment which the law inflicts for crimes committed. State ex rel. Oliver v. Hunt, 247 S.W.2d 969 (Mo. banc 1952); State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061 (1941); Lime v. Blagg, 345 Mo. 1, 131 S.W.2d 583 (banc 1939). No other instances have been cited where the governor has attempted to pardon the revocation of a license, and no other constitutional provision or statute has been found which either expressly or impliedly authorizes him to do so. We note, however, that in another context, the pardon power has been strictly construed, being held to apply only to offenses against the state and not to violations of municipal ordinances. State ex rel. City of Kansas City v. Renick, 157 Mo. 292, 57 S.W. 713 (banc 1900). We find no indication in the proceedings of the constitutional convention of 1945 (Vol. 7, p. 3983) that the framers of the constitution contemplated or intended that the pardon power of the governor be extended to reach the facts of this case.

In light of the foregoing, and giving the language of the constitution its plain and ordinary meaning, we are unwilling to hold that Art. IV, Sec. 7 empowers the governor to pardon persons whose licenses have been revoked by the Supervisor of Liquor Control. To do so would pave the way for a great expansion of this power into the myriad of administrative decisions which affect thousands of persons throughout the state. Might the governor then be able, for example, to 'pardon' a person from the denial of his application for welfare? A constitutional provision should never be construed to work confusion and mischief unless no other reasonable construction is possible. State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701 (banc 1952).

This decision does not reach instances where a licensee has been found guilty and convicted of crimes which have been pardoned by the governor, but such convictions are nonetheless made the basis for revoking or refusing to renew his license. See and compare Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277 (1942) with Damiano v. Burge, 481 S.W.2d 562 (Mo.App.1972) and Guastello v. Garrett, (Ct.App. # KCD 26948, decided June 2, 1975). See also the cases collected at 58 A.L.R.3d 1191. Inasmuch as the present case does not involve a criminal conviction but only an administrative revocation, this problem need not be further pursued here.

Respondent argues in the alternative that should the governor's pardon not be effective as such, then the document should be treated as an 'order'...