130 Mo. App. 284 | Mo. Ct. App. | 1908
(after stating the facts). — 1. Respondents’ first point is that the writ was improvidently issued, in that it was issued contrary to the usual practice of the court to deny the issuance of extraordinary writs, unless there is some special reason therefor. Suffice it to say that this- court has no rule in respect to the issuance or non-issuance of writs in cases of this character, and the Avrit haying been issued and a return made thereto, the court is put in possession of the case and should not halt at this stage of the proceedings and dismiss the cause but should proceed to dispose of the case on its merits.
2. The second point made by respondents is that the act of the county court in revoking relator’s license was a ministerial or administrative act, non-judicial in its nature-, and for this reason the writ of certiorari will not lie. In Barnett v. County Court, 111 Mo. App. 693, 86 S. W. 575, Barnett’s license as a dramshop keeper was revoked by the county court of Pemiscot county, on the ground that Barnett had not at all times kept an ordérly house. Barnett filed an affidavit for an appeal from the order of the county court to the circuit court. The county court refused to grant the appeal, and Barnett sued out of this court an alternative writ of mandamus directed to the justices of the county court, commanding them to allow the appeal or show cause. Cause was shown and Nortoni, J., writing the opinion.for this court, held that the order of the county court revoking Barnett’s license' was not such a judg
In 4 Ency. Plead, and Prac., p. 10, it is said: “In its office the writ of certiorari is confined to reviewing the proceedings of inferior boards, officers, or tribunals which proceed in a summary manner and not according-to the course of the common law, and where there is no other remedy provided by statute. By such writ (cer-tiorari) inferior judicatories are kept within the bounds of their jurisdiction, and may be required, where their actions are erroneous or illegal, to certify the record of such proceedings to the superior court to be reviewed.”
In State ex rel. v. Dowling, 50 Mo. 1. c. 136, Bliss, J., quoting from Judge Savage, in Starr v. Trustees, etc., 6 Wend. 567, said: “It may be said that these plaintiffs have their remedy by action, therefore certi-orari will not lie. Where there is no jurisdiction there is a remedy by action, but that does not deprive this court of jurisdiction, nor prevent a party injured from pursuing this remedy.”
In State ex rel. v. Shelton, 154 Mo. 1. c. 691, Brace, J., said: “Now, while certiorari is the appropriate remedy where, an inferior tribunal acts without jurisdiction or in excess of its jurisdiction, or when within its jurisdiction, but the action of such inferior tribunal cannot be reviewed on appeal or writ of error (State ex rel. v. Stephens, 146 Mo. 662, 48 S. W. 929; State ex rel. v. Switzler, 143 Mo. 287, 45 S. W. 245; State ex rel. v. Harrison, 141 Mo. 12, 41 S. W. 971, 43 S. W. 867; State ex rel. v. Madison Co. Court, 136 Mo. 323, 37 S. W. 1126; State ex rel. v. Dobson, 135 Mo. 1, 36 S. W. 238; State ex rel. v. Slover, 113 Mo. 202, 20 S. W. 788; Railroad v. Young, 96 Mo. 39, 8 S. W. 776; Han. & St. Joe Ry. Co. v. State Board of Equalization, 64 Mo. 294; Snoddy v. County of Pettis, 45 Mo. 361; Rector v. Price, 1 Mo. 198) ; yet in this State the law
In State ex rel. v. Smith, 176 Mo. 99, 100, 75 S. W. 586, Pox, J., said: “This writ may be resorted to, not only in cases Avhere it is alleged that the lower court is absolutely without any jurisdiction whatever; but it also may reach, and afford a remedy, in cases where such court has jurisdiction, but undertakes to exercise unauthorized powers. This principle was very clearly announced by Judge Black in State ex rel. Dawson v. St. Louis Ct. of App., 99 Mo. 1. c. 221, 12 S. W. 661, where it is said: ‘But it cannot be said that the Avrit avüI be issued only in those cases where the loAver court has no jurisdiction whatever over the case before it.’ High says: ‘The province of the writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but is also extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject-matter in controversy, has exceeded its legitimate powers.’ ”
Now, while the county court, in revoking a dram-shop license, acts as the administrative agent of the State, nevertheless it is a constitutional court and acts in its character as a court of record, and cannot divest itself of that character by the mere fact, that the function exercised at the time is a ministerial or administrative function. Therefore, its action is subject to review, if it had no jurisdiction to revoke relator’s license for the cause alleged, or if it exceeded its jurisdiction.
The petition against relator was filed by citizens, who are expressly authorized by statute to make such a complaint, and charged a violation of section 3009, of the dramshop act, and is bottomed on the affidavit of Albert Stuck, and the only charge is that relator
In Commonwealth v. Bessler, 97 Ky. 498, it was held: “The offense of keeping a disorderly house consists of a repetition of improper conduct, and to constitute a good indictment for that offense words must be used which show the repetition or frequency of the acts complained of, as that the acts were done on a day certain ‘and on divers other dáys and times,’ etc. It is not sufficient to allege that the acts were done (on the-days of-, 1894, and before the finding of the indictment.” [See also Hawkins v. Lutton, 95 Wis. 492.]
In State v. Maxwell, 33 Conn. 259, the common law definition of a disorderly house is given as “a house the inmates of which behave so badly as to become a nuisance to the neighborhood.” To this definition we add this: A disorderly house is any house to which people resort to the disturbance of people lawfully within the place; a house used or resorted to for the
Wherefore, it is considered by the court that the order and judgment of the county court of Montgomery county, revoking relator’s dramshop license, be and the same is hereby set aside and for naught held.