Hein v. Smith, 13 W. Va. 358

Hein v. Smith

13 W. Va. 358 | W. Va. | 1878

JOHNSON, Judge,

delivered the opinion the Court:

Whether a writ of prohibition should issue in this case, depends upon the answer to the question : Has the circuit court jurisdiction by supersedeas to review an order of the county court granting a license to retail spirituous liquors, &c. ?

If the circuit court has such power, the writ will be refused; if it has not, the writ will be granted.

Syllabus 1. In at least two cases in Virginia the Court of Appeals has decided, that the action of the county court, in granting or refusing a license to retail liquors, is final and conclusive. In one of the cases, a mandamus, to compel the county court to grant a license, when the applicant had complied with the law, was refused; and in the other case, which, in nearly all its material circumstances, was like the case here, a writ of prohibition to the circuit-court, which had by supersedeas reviewed and reversed the order of the county court granting a license, was awarded.

In the first case, ex parte, Yeager, 11 Gratt. 655, is a very able review of the authorities by Judge Daniel. *367In that case, there was also an application for a writ of error to the action of the superior court; and as to that' application Daniel J. said : “I think it proper to add, for reasons which may be collected from views of the law already expressed, that I think there is no mode, by which the action of the justices can be appealed from.”

In the other case, French v. Noel, 22 Gratt. 454, the court held, that the county court had a discretion to grant or refuse a certificate for obtaining a license to retail ardent spirits; and the court having granted such a certificate, “the judgment of the said court in that respect was final and conclusive.”

But it is insisted by counsel for respondents, that “under an express constitutional, as well as a statutory, provision the county court had no discretion to grant license to sell at retail spirituous liquors, &c. within an incorporated city, village or town, until the applicant had obtained theconsentof the authorities therein and therefore the county court could not finally determine, that the consent of the city, town, or village had been obtained, and in so determining arbitrarily refuse to hear evidence, that such consent had not in fact been obtained.” It is true, that the constitution, as well ás a statute, declares, that no license shall be granted in an incorporated city, or town, without the consent of the authorities of such city, or town. Chapter 107 of the Acts of the Legislature of 1877, in operation at the time the county court granted the certificate in this case, declares, that several other things are necessary, before the county court shall grant a license for selling spirituous liquors.

Section 11 provides, that “the county court, or other tribunal acting in lieu thereof, * * * * shall not authorize any license, mentioned in the first section, unless they are satisfied, and so enter on their record, journal or minutes, that the applicant for such license is not of intemperate habits.”

Section 18 provides, that “no county court, or other *368tribunal acting in lieu thereof, * * shall authorize the issuing of any license to sell spirituous liquors, wine, porter, ale, beer, or drink of like nature, until the applicant shall have given bond with good security, to be approved by the court, or other tribunal, * * * in a penalty of at least three thousand five hundred, dollars, conditioned, &c.

Section 8 of chapter 38 of the Code of "Virginia of 1849, declares, that “the receipt for the tax on such 'license, as is mentioned in the fourth section, shall be produced to the court, to which application is made for the license, before, such application is considered. If the court reject the application, the tax shall be refunded to the person, who paid it.” This statute was in effect, when the case of Yeager ex parte, supra, was decided ; yet the court thought, there was no mode, by. which the action of the justices in granting, or refusing to grant, a license, could be appealed from.

The constitution and statutes arc mandatory on the county court; and it is very wrong in that court to not strictly follow the requirements of the law, in the matter of granting, or refusing license to sell spirituous liquors &c.; yet the sole power, (except when by special law it is placed elsewhere), is lodged with that court to act in such matters; and the law certainly has not conferred upon the circuit court the power, by supersedeas, to review such action of the county court. If a supersedeas would lie, of course it would be proper to take bills of exceptions, as to the rulings of the county court, in such cases.

If the consent of the town, in which the applicant wishes to sell liquors, &c., had not been obtained, or if obtained, procured in an improper way, or the evidence of it not legal, all these things would be proper to incorporate in a bill of exceptions, if a supersedeas would lie.

So with regard to the certificate of the party not being of intemperate habits, there might be quite a conflict of evidence on that subject, which in many cases would make *369an interesting'bill of exceptions. If the bond was not given, or if it was an improper bond,' these questions could be reviewed, if the supersedeas would lie. Neither the constitution nor the law provides for a supersedeas in such a case. If it had been allowed it would very greatly have increased the litigation in the State, perhaps for no good purpose.

Sec. 12 of Art. 8 of the Constitution of the State, confers upon the circuit courts appellate jurisdiction, as follows: “*They shall have appellate jmisdiction, upon petition, and assignment of error, in all cases of judgments decrees and lina! orders rendered by the county court., and such other inferior courts of record, as may be hereafter established by law under the provisions of this article, where the matter in controversy, exclusive of costs, is of greater value or amount than twenty dollars; in controversies respecting the title or boundaries of land, the probate of wills, the appointment or qualification of a personal repi’esentative, guardian, committee or curator; or concerning a mill, road way, ferry or landing, or the right of a corporation or county to levy tolls or taxes; and also in cases of habeas corpus, quo warranto, mandamus, prohibitions and certiorari, and in cases involving freedom, or the constitutionality of a law, and in all cases of conviction under criminal prosecutions in said court.”

This constitutional provision limits the appellate jurisdiction of the circuit courts to the cases therein enumerated. Can it be claimed, that this case falls within that number ? It certainly cannot be included in any of these cases, unless it involves “freedom, or the constitutionality of a law.”

It is not claimed, that it involves any constitutional question. It is claimed by counsel for respondents, that it involves “freedom.” It certainly does not involve the freedom of any person. No one’s personal liberty is in any way interfered with by the j udgment of the *370county court, within the meaning of the word “ freedom,” as used in the constitution.

A. and B. filed their petition in this court at the present term, showing that they had applied to the county court oi Jackson county for a license to carry on the business of a druggist in the town of Ripley, in said county, showing by said petition that they had in every respect complied with the requirements of the statute, before they made such application, and by the petition, and record of the county court in the case it appeared that their application was refused, solely on the ground that it was against public policy to grant it; and the petition prayed for a mandamus to compel the said comity court to grant said license, and upon mature consideration this court unanimously refused to issue a mandamus nisi, on the ground that by sec. lof chap. 107 oftheaetsof the Legislature of 1877, a person who wishes to obtain a license to carry on the business of a druggist is put in the same position of a party who applies for a license to sell spirituous liquors', and the same law applies to both ; and therefore the court could not, for the reason aforesaid, by mandamus compel the said county court to grant such license.

Judge Smith had no appellate jurisdiction by ■super-sedeas to review the order of the county court in this case, and his reviewing and reversing said order was unwarranted. He did, however, reverse said order; and the act being done, can this court issue the writ of prohibition ? In United States v. Hoffman, 4 Wall, 158, it was held, that “ where the court to which the writ should be issued has already disposed of the case, so that nothing remains, which that court can do either by way of executing its judgment, or otherwise, no prohibition will be granted.” In that case the rule was discharged, because the return showed, that the inferior court had dismissed the case, in which it had assumed an unwarranted jurisdiction.” Here the Court entered its judgment reversing the orders of the county court, and of course has the power, and will, *371if permitted, to enforce that judgment. I think there is no doubt that the writ should issue in this case. French v. Noel, 22 Graft, supra.

Syllabus 2. The court is therefore of opinion, that the order of the defendant, Joseph Smith, judge of the circuit court of Mason county, dated the 8th day of April, 1878, awarding, on the petition of 'William Smith, a superse-deas to the said order of the county court of Mason county, and all the proceedings, which were afterwards had upon the said supersedeas, and especially the judgment, rendered upon the same by a circuit court hold for said county on the 20th day of April, 1878, pronouncing the said orders of the county court to be erroneous, and considering that the same be reversed and annulled, and that the said Smith recover against the said Hein his costs, by him expended in prosecuting the said supersedeas, were all coram non judiice and null and void; the said judge having no authority to award the said su-persedeas, and the said circuit court having no authority to entertain jurisdiction of the same.

Syllabus 3. Therefore it is adjudged and ordered, that a writ of prohibition be awarded according to the prayer of the said petition, directed to the said defendants, commanding them to proceed no further upon the said supersedeas, awarded by the said Joseph Smith, Judge, as aforesaid, nor upon the judgment of the said circuit court, and superseding the said supersedeas and all proceedings which have been had under the same, and especially the said judgment of the said circuit court; so that the said order of the county court will continue and remain in full force and effect, as if no such supersedeas had ever been awarded, and as if no such judgment of the circuit court had ever been rendered as aforesaid. And it is further adjudged and-ordered, that the service of an office copy of this order upon the said defendants shall have the same force and effect as the execution upon them of a writ of prohibition issued in pursuance thereof; audit is further ad*372judged and ordered, that the plaintiff, Joseph Hein, recover against the said defendant, William Smith, his costs, by him expended in the prosecution of this proceeding, which is ordered to be certified to the said circuit court of Mason county.

The other Judges corcurred.

Writ awarded.