Barnett v. Pemiscot County Court

111 Mo. App. 693 | Mo. Ct. App. | 1905

NORTONI, J.

(after stating the facts). — The matter of appeals from county to circuit courts as provided by statute is as follows. Section 1674, R. S. 1899, provides : “The circuit courts in the respective counties in which they may be held, shall have power and jurisdiction as follows:.....Fourth, appellate jurisdiction from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind.” Section 1788 provides: “In all cases of appeal from the final determination of any case in a county court, such appeal shall he prosecuted to the appellate court in the same manner as is provided by law for the regulation of appeals from justices of the' peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed .to hear and determine the same anew, and in the same manner as if such case had originated in such appellate court without regarding any error, defect or informality in the proceedings of the county court.” The law nowhere prohibits appeals from county to circuit courts in any class of cases, therefore the limitation of the right of appeal found in the statutes must be left to interpretation by the court. State ex rel. Twining v. St. Louis County Court, 47 Mo. App. 647. The language conferring appellate jurisdiction upon the circuit courts in matters appealed from county courts being in “all cases not expressly prohibited by law,” and there being no statute prohibiting appeals of any class, the right of appeal, would appear to cover all manner of matters of which a county court has jurisdiction. But it is the duty of the court in interpreting this statute to read in connection therewith section 1788 above quoted on the same subject, which last mentioned statute directs how an appeal may be perfected to the circuit court and what shall be done with such case after it reaches the appellate court. It provides, “such appellate court shall thereupon be possessed of such case and shall proceed to hear and determine the same anew.” When we read these two,sections together, we are forced to the inevitable conclusion that appeals from county to circuit courts can be had only in such cases as are triable de novo in the circuit court, that, is, susceptible of being-tried anew in the appellate court and in which the circuit court can enter a valid judgment of its own. An appeal can only be taken when the judgment or order appealed from is judicial. If the matter be not judicial there is no appeal. Ency. Pl. & Pr., vol.2, p. 26; Elliott, App. Procedure, sec. 78; St. L., I. M. & S. Railway, Co., v. City of St. Louis, 92 Mo. 160, 4 S. W. 664; Scott Co. v. Leftwich, 145 Mo. 26, 46 S. W. 963; Bean v. Barton County Court, 33 Mo. App. 634; State ex rel. Twining, 47 Mo. App. 647. It has been held that, “Appeals are allowed only where, when in the nature of the case, the circuit court can try the matter anew, and give such judgment as the county court should have given.” Sheridan v. Fleming, 93 Mo. 321, 5 S. W. 813.

It will he observed that the statutes above quoted, granting the right of appeal, does not provide for an appeal in all matters of which the county court has jurisdiction. Section 1674 provided for an appeal in all “cases” not expressly prohibited, etc. The same word “cases” is employed in section 1788 as is also the word “causes” which is synonymous therewith. The word “case” or “cause” to which the statute confers the right of appeal, has a well settled and defined meaning in law. Black’s Law Dictionary defines it as follows: “The primary meaning of ‘case’ is ‘cause’ when applied to legal-proceedings; it imports a state of facts which furnishes occasion for the exercise of the jurisdiction of the court of justice. In its generic sense, the word includes all causes, special or othenvise.” “A' case is a contested question before a court of justice; a suit or action; a cause; a state of facts involving a question for discussion or decision, especially a cause or suit in court.” 2 Am. & Eng. Ency. Law., vol. 5, 748; Roberts v. Baldwin, 165 U. S. 275; Calderwood v. Peyser, 42 Cal. 115; Home Ins. Co. v. N. W. Packet Co., 32 la. 223; Ex parte Towles, 48 Tex. 433; Kundolf v. Thalheimer, 12 N. Y. 596. When viewed from this standpoint, as well as that heretofore mentioned, it is apparent that the statute contemplates appeals in judicial matters only, that is, in cases or causes in which some substantial right is involved and under adjudication. The substantial civil rights guaranteed by our Constitution are primarily those of life, liberty and property. If any one of these be invaded or infringed upon, the citizen is entitled to invoke the judicial process of the courts in order to have his rights measured, ascertained and protected by due process of law. When none of these fundamental rights are involved in the proceeding, then the. proceeding is not necessarily judicial. It therefore follows that in a matter or proceeding not judicial in its nature, there would be no case or cause within the contemplation of the statute for appeal and no appeal would be allowed unless by special provision of the statutes authorizing such appeal. Appeals are not allowed in every manner of matter brought before the county court for summary proceedings. In consonance with the above doctrine it has been decided by this court that an appeal does not lie from an order of a county court granting a dramshop license. State ex rel. Twining v. County Court, 47 Mo. App. 647, also by the Kansas City Court of Appeals, Bean v. Barton County Court, 33 Mo. App. 625. In the last two cases the courts based their decisions upon the fact that the circuit court had no authority to grant a dramshop license, hence the matter was one which the circuit court could not try anew and for this reason the appeal was not contemplated nor authorized by the statute quoted. In Sheridan v. Fleming, 93 Mo. 321, 5 S. W. 813, the Supreme Court held that there was no appeal by the party in interest from the order of the county court refusing to levy a special tax to pay a warrant held by such party for building a ditch, under the statute, on the ground that the circuit court could not levy a tax. The same doctrine is held in St. L., I. M. & S. Railway Co. v. City of St. Louis, 92 Mo. 160, 4 S. W. 664.

“Appeals will not lie from decisions upon ministerial, legislative or executive questions . . . . It may be said with safety that where a discretionary power is conferred upon an officer or tribunal the general rule is that no appeal can be taken from the decisions made by such officer or tribunal.” Elliott on Appellate Procedure, sec. 78; 2 Ency. Pl. & Pr., 26; Scott Co. v. Leftwitch, 145 Mo. 26, 46 S. W. 963. This brings us, then, to determine whether or not a proceeding to revoke a dramshop license under the provisions of sec. 3012, is a judicial proceeding. The section is 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 dram-shop keeper to he revoked, and from the date of such order the dramshop keeper shall he deemed to have no license, and to he without the authority of law to act as a dramshop keeper; but the dramshop keeper shall he notified in writing of such application, five days before the order shall be made and costs shall be awarded against the losing party.”

It would seem from the fact that the statute provides for notice to the dramshop keeper and that costs shall be awarded against the losing party that the statute contemplates a trial of the matter before the county court; that evidence would be received pro and con on the question therein submitted and that a determination thereof by the county court would be an exercise of the judicial functions of the court and therefore that the question would be judicial in its nature, and no doubt this would be true, provided the dramshop keeper or licensee under the license sought to be revoked, had a vested or property right under the license. It is settled law of this jurisdiction, however, that the sale of intoxicating liquors is unlawful because of its tendency to deprave public morals. Austin v. State, 10 Mo. 591; State ex rel. v. Hudson, 78 Mo. 302, State ex rel. v. Moore, 84 Mo. App. 11; State ex rel. v. Higgins, 84 Mo. App. 531; State v. Bixman, 162 Mo. 1, 62 S. W. 828; Black on Intoxicating Liquors, sec. 24. That no person has a right to sell intoxicating liquors in this State as a dramshop keeper without having a license from the proper authorities authorizing him to' do so and in the counties, exclusive authority to grant such license is vested in the county court by secs. 2990 and 2993, R. S. 1899. Higgins v. Talty, 157 Mo. 280, 57 S. W. 724; State v. Bixman, 162 Mo. 1, 62 S. W. 828. It is well settled by the adjudicated law of this State and country that such licenses when issued or granted, are merely permits and that in no case are such licenses contracts between the State and the licensee in which the dramshop keeper or licensee has a vested right, but, on the contrary, they are at tall times subject, by reason of the tendency of the business to deprave public morals, to the police powers of the State and may be revoked at any time by the State goverment for a violation of the statutes of the State provided for the regulation of the sale of liquors under such license, whether such stipulation be contained in the license or not. The statutes of the State governing the sale of liquors and the conduct of dramshops thereunder, become a part and parcel of the license. The licensee necessarily accepts the license thereunder and subject thereto, and the statutes are as effectively a part of the license as if incorporated therein and therefore, when the appellant in this case accepted the license from the county court of Pemiscot county, he accepted it subject to all of the provisions of section 3012, supra, and subject to the right of the county court in the administration of the police powers of the State, to revoke the license upon it being made to appear to such court as therein specified that he had not at all times kept an orderly house. Higgins v. Talty, 157 Mo. 280, 57 S. W. 724. “A license to sell liquor is neither a contract nor a right of property, within the legal and constitutional meaning of those terms. It is no more than a temporary permit to do thát which would otherwise be unlawful, and forms a part of the internal police system of the State. Hence the authority which granted a license always retains the power to revoke it, either for due 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 obligations or as unlawfully divesting persons of their property or rights.” Black on Intoxicating Liquors, sec. 189; Cherry v. Commonwealth, 78 Va. 375; People v. Wright, 3 Hun 306; Higgins v. Talty, 157 Mo. 280.

The Supreme Court oí New York has well stated the law as follows: “The board being satisfied, to exercise their discretion in respect to revoking licenses that a violation of the law had taken place, were not required to take the formal proceedings and full evidence which might be proper and necessary to reach a judicial conclusion, which should work a deprivation of property or produce an interference with life or liberty. They were simply to become satisfied in their judgment, and then this right, as well as dnty, to revoke the • permit which had been given relator, was clear. They were simply recalling the permit which relator had obtained and held from the board and which he accepted upon condition that the board might, in their discretion, revoke.” People v. Wright, 3 Hun 310; People v. Haughton, 41 Hun 558. “That the power to license the sale of intoxicating liquors and to cancel such license when granted is vested in the Legislature has been determined by the court. (Met. Board of Excise v. Barrie, 34 N. Y. 657.) The mode and manner in which this shall be done rests in the discretion of that body.” People v. Board of Com., 59 N. Y. 92. In Voight v. Board of Excise, 59 N. J. Law Rep. 358, it was contended that the license was property and that it could not be taken away from the holder except by a judicial proceeding. The court,' answering this contention, said: “We do not think that either of these contentions are well founded: A license is in no sense property, it is a mere temporary permit to do what otherwise would bé illegal, issued in the exercise of the police- power,” citing Lantz v. Heighstown, 17 Vroom. 102; Board of Excise v. Barrie, 34 N. Y. 657; 11 Am. & Eng. Ency. Law, 634. The law being thus well settled that the licensee holds no contract which gives him a vested right under the license, that he holds a mere permit subject to revocation by the power which granted it for cause, it follows that the proceeding to revoke the license is not judicial in its character. If there are no property rights involved, there is nothing calling far the exercise of the judicial power nor the judicial fuctions of the county court in revoking the license, and the county court in acting in that behalf, instead of proceeding in the capacity of a court exercising judicial powers, would proceed in the capacity of an excise board as an agent of the State in a ministerial or administrative capacity, exercising the police powers and enforcing police regulations of the State in revoking the permit which the licensee had violated. In proceedings of this kind, Black on Intoxicating Liquors, sec. 194, states the law as follows : “The proceeding may be summary andthe authorities are not required to take the formal proceedings essential to form a basis of a judicial decision affecting life, liberty or property. Nor is this the species of proceeding in which the defendant is entitled as a matter of constitutional right, to a trial by jury.” In a recent case in which the excise commissioner of St. Louis, under sec. 3021, R. S. 1899, had revoked the license of a dramshop keeper for the same reason as in the case at bar, our Supreme Court said: “Rosselli’s license is not a contract with the State, not property within the meaning of the Constitution but is subject at all times to the police powers of the State government, by which it is provided that such licenses may be revoked by the excise commissioner for violation of the law and this, without waiting until Rosselli had been convicted by a court having jurisdiction for violation of the law, and that in proceeding to do so, he was not acting judicially, but under the power conferred upon him by statute with respect to subject-matter over which he has exclusive control.” Higgins v. Talty, 157 Mo. 280. This case was recently- decided by our Supreme Court. In principle it is identical with the case at bar and is decisive of this question.

It is contended, however, by appellant that as sections 3017 and 3018, R. S. 1899, criminal in their nature, provide that in the event the dramshop keeper is convicted in the circuit court on information or indictment of any one of the several offenses therein defined, that “in addition to such fine, shall forfeit his license and shall not again he allowed to obtain a license to keep a dramshop for a term of two years thereafter,” that therefore the circuit court had jurisdiction to proceed in matters for the revocation of dramshop licenses and that the appeal thereto should be allowed in this proceeding. It will be observed that the statutes mentioned do not authorize nor do they attempt to authorize a proceeding in the circuit court for the mere purpose of revoking a license. These sections define numerous offenses against the dramshop law, such as selling liquor to habitual drunkards, permitting games to be played in a dramshop or permitting musical instruments to be performed upon therein and provide that the person convicted thereunder shall.pay a fine as a penalty for the offense “and in addition to such fine, shall forfeit his license.”etc. This is an element of the penalty for the violation of the statute. The statutes do not authorize the proceeding for the purpose of seeking the forfeiture of a license. The proceeding in that case is to convict the accused of a violation of the statute specified, and upon his being convicted, the conviction of itself, ipso facto, forfeits his license. There is not even a provision that the court shall enter up a judgment to the effect that the license be forfeited and that defendant shall not again be licensed for two years thereafter. The statute is to the effect that if the dramshop keeper is convicted, he shall suffer a certain penalty and in addition, shall forfeit, etc. There is nothing in these sections which confer jurisdiction upon the circuit court to proceed in a matter which has no other purpose than to inquire and ascertain whether or not a dramshop keeper has at all times kept an orderly house and to exercise the police powers by forfeiting his license if it be found that he has not. This statute itself is part and parcel of the license of the dramshop keeper just as much so as if it were copied and incorporated therein and when the licensee accepted the licenses from the county-court, he accepted it with these statutory conditions en-grafted thereon. Higgins v. Talty, 157 Mo. 280. And in the event of his conviction in the circuit court, his license would forfeit by virtue of acceptance of the license, subject to this wholesome regulation.

Our conclusion is that the county court in revoking the license of appellant, acted in an administrative and ministerial capacity as the agent of the State, exercising the police powers thereof to the end that the business otherwise unlawful, should not be conducted in a manner contrary to the permit theretofore by it granted and that the proceeding contemplated by section 3012 which was had in this case by the county court is in no sense judicial for the reason that no* right of life, liberty or property was therein involved nor adjudicated and that there was therefore no case or cause pending in the county court as is contemplated by the statute granting appeal therefrom to' the circuit court. The judgment is therefore affirmed.

All concur.