State ex rel. Arnold v. Lichta, 130 Mo. App. 284

State ex rel. Arnold v. Lichta

130 Mo. App. 284 | Mo. Ct. App. | 1908

BLAND, P. J.

(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 App. 693, 86 S. W. 575, Barnett’s license as a dramshop keeper was revoked by the county court of Pemiscot county, on the ground that Barnett had not at all times kept an ordérly house.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*289ment as could be appealed from, under the statutes of tbis State regulating appeals from county courts to circuit courts, on the ground, first, that no appeal is given by the dramshop act from an order of the county court revoking a dramshop' keeper’s license for keeping a disorderly house and, second, that an appeal does not lie under the general statutes allowing appeals from county courts to the circuit courts, for the reason there is no contractual relation between the State and the licensee; that the latter has no property in the license, which is a mere permit, subject to revocation by the power that granted it, and there being no property rights involved, there is nothing calling for the exercise of any judicial function by the county court in revoking the license; and that in the proceedings the county court did not act in a judicial capacity but in the capacity of an excise board, as the agent of the State, in a ministerial or administrative capacity, exercising the police powers enforcing police regulations of the State. The Barnett case is approvingly cited and followed in the case of State v. Seebold, 192 Mo. 1. c. 729, 91 S. W. 491, and in the case of State v. Kirk, 112 Mo. App. 447, 86 S. W. 1099. This doctrine is supported by the authorities cited in the Barnett and Seebold cases and also by the case of Higgins v. Talty, 157 Mo. 280, 57 S. W. 724. It may therefore be accepted as settled law, that a county court in revoking the license of a dram-shop keeper, on the charge of not at all times keeping an orderly house, does not exercise any judicial function. But in determining whether or not the charges against relator brought the case within its jurisdiction to revoke his license, the county court exercised judicial power, and if in the exercise of this function, the court stepped outside the bounds of its jurisdiction to take cognizance of the charges, certiorari will lie. [State ex rel. Ellis v. Elkin, 130 Mo. 90, 30 S. W. 333, *29031 S. W. 1037; State ex rel. v. Guinotte, 156 Mo. 513, 51 S. W. 281; 4 Ency. of Plead. & Prac., p. 38; 23 Am. and Eng. Ency. of Law (2 Ed.), 230.]

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 *291is a]so well settled that it cannot be used as a substitute for appeal or writ of error; and that, where such tribunal has jurisdiction and its action can be reviewed by appeal or writ of error, certiorari will not lie.”

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 *292violated the dramshop act by furnishing whisky to minors in his dramshop on one occasion. On finding him guilty of this charge, the court found that relator had not at all times kept an orderly house and by this finding undertook to bring the case within the provisions of section 3012, which expressly authorizes the county court to revoke the license of a dramshop keeper, who does not at all times keep an orderly house; in other words, the court found as a matter of law that a dramshop keeper, who, on a single occasion, furnished intoxicating liquor to two minors, is guilty of not at all times keeping an orderly house, and counsel for. respondents argued at great length in support of the soundness of this ruling. A disorderly house has been judicially defined to be a house kept in such a way as to disturb, annoy or scandalize the public generally, the inhabitants of the particular vicinity, or the passers-by in a particular highway. [State v. Wilson, 93 N. C. 1. c. 609, citing 2 Whar. Crim. Law, sec. 2392.]

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 *293purpose of gaming, prostitution, or other illegal or immoral purposes. [1 Bishop’s New Crim. Law, sec. 1106; Price v. State, 96 Ala. 1; Overman v. State, 88 Ind. 1. c. 8; State v. Grosofski, 89 Minn. 1. c. 345.] Open, repeated and continuous sales of intoxicating liquors to minors, to the annoyance and disturbance of the inhabitants of the vicinity, might come Avithin the legal definition of a disorderly house; but a single sale or gift of intoxicating liquor to two minors, one twenty and the other nineteen years old, by a dramshop keeper, falls far short of bringing his house or place of business Avithin the legal definition of a disorderly house. Therefore, the county court Avas Avithout authority to revoke relator’s license under the provisions of section 3012, of the dramshop act, which expressly provides that “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 dramshop keeper to be revoked,” etc. One of the conditions of the bond required to be given by a dram-shop keeper is, that he shall at all times keep an orderly house and that he will not sell, give away or otherwise dispose of, or suffer the same to be done about his premises, any liquor* in any quantity to any minor. [Sec. 2995, Ann. Stat., 1906.] The penalty for selling liquor to a minor is a forfeit of $50 to the parent or guardian of such minor, to be recovered by civil action on the bond of the dramshop keeper, and in addition to the civil liability the statute provides that such dramshop beeper shall be deemed guilty of misdemeanor and be punished by a fine of not less than $40 or more that $200. [Sec. 3009, of the Dramshop Act.] While perhaps there should be, there is no provision whatever in the dram-shop act for the forfeiture of the dramshop keeper’s license for a violation of section 3009, by selling or givr ing away intoxicating liquor to a minor. On convic*294tion of keeping his dramshop open on Sunday, or of selling or giving away, or otherwise 'disposing of intoxicating liquor on Sunday, the dramshop keeper is subject to a fine of not less than $50 or more than $200, and a forfeiture of his license, and is disqualified to keep a dramshop for two years thereafter. Section 3018, of the dramshop act, prohibits a dramshop keeper from keeping or exhibiting, etc., any piano, organ or other musical instrument whatever, for the purpose of performing upon or having the same performed upon in his dramshop. He is also prohibited from setting up any billiard table, etc., in his dramshop, or in any building used in connection therewith. A violation of the provisions of this section is made a misdemeanor punishable on conviction by a fine and forfeiture of his license. No other sections are to be found in the act providing for a forfeiture of license.' As stated• above, section 3012 is the only section of the act expressly conferring the power on county courts to revoke dram-shop license. In cities of two hundred thousand inhabitants or over, the excise commissioner in such cities, by section 3021, Ann. Stat., 1906, is given the broad power to revoke a dramshop keeper’s license for any violation of the dramshop act. For the reason this broad power is given to the excise commissioners and not to the county courts, it was contended in the See-bold case that the excise law was unconstitutional. The court noted the difference in the powers respectively granted but, quoting from Black on Intoxicating Liquors, sec. 189, said: “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 that which would otherwise be unlawful, and forms a part of the internal police system of the State. Hence the authority which granted the license always retains the power to 'revoke it, either for cause of forfeiture, or upon . a *295change of policy and legislation in regard to tbe liquor traffic. And such revocation cannot be pronounced unconstitutional, either as an impairment of contract obligation, or as unlawfully divesting persons of. their property or rights.” For the reason the State enters into no contractual relation with the dramshop keeper by granting him a dramshop license and accepting the license fee, and for the reason the dramshop keeper has no property interest in the license, and for the reason the licensee is bound to submit to such police regulations in respect to the sale of intoxicating liquors, as the Legislature of the State has prescribed, it is contended by respondents that any violation of such regulations works a forfeiture of the license and that the power to revoke goes with and is incidental to the power to grant the license. In support of this position the Seebold and other cases arising under the excise laws are cited; also a case from Virginia and one from Kentucky, where, under statutes, express power is conferred on county authorities to revoke a dramshop license for any violation of the dramshop laws of these States. None of these cases are in point, for the reason they are decided upon statutes not found in the dram-shop act of this State, so far as county courts are concerned. The scheme of granting a dramshop license and of regulating dramshops is purely statutory, the statutes having been enacted in the exercise of the internal police powers of the State. The power of the county courts to grant such license is not an inherent power of the court but a power expressly granted to it by the Legislature, to be exercised, however, only in the manner and upon the conditions pointed out by the statute, so that regulations apply as well to the county court as to the dramshop keeper and both should be kept within the bounds prescribed by the law. The county court is without authority to grant a dram-shop license except in the manner and on the condi*296tions prescribed by statute; it is equally without power to revoke a license for any cause other than that the dramshop keeper has not at all times kept an orderly house. The petition to the county court failed to state that relator had not at all times kept an orderly house, and the facts found by the county court are insufficient to convict him of that offense. Therefore, we think the county court overstepped the bounds of its jurisdiction when it found relator guilty of keeping a disorderly house by making a single sale or gift of intoxicating liquor to Stuck and Peery, and on this ground alone revoked his license.

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.

All concur.