State ex rel. Jones v. County Court

66 Mo. App. 96 | Mo. Ct. App. | 1896

Ellison, J.

This a proceeding by certiorari, issued by the circuit court to the county court of Cooper county, whereby it is sought to annul a dram-shop license which the county court granted to John D. Patrick. The circuit court annulled the license. The ground assumed by the relator is that the county court had no jurisdiction to grant such license, on account of its not appearing in the record that said Patrick was a “law-abiding, assessed, taxpaying male citizen above twenty-one years of age.” The record of the county court is silent on that question and relator contends that that fact must affirmatively appear of record before the county court has jurisdiction to grant the license.

The rule of law is that nothing will be presumed to be within the jurisdiction of inferior courts, and that such jurisdiction must appear by the record in all cases where it is attacked directly for that reason.

Section 4 of the dramshop act, Laws, 1891, page 128, declares: ‘ ‘Application for a license as a dramshop keeper shall be made in writing to the county court, and shall state specifically where the dramshop is to be kept, and if the court shall be of the opinion that the applicant is a law-abiding, assessed, taxpaying citizen, above twenty-one years of age, the court may grant a license for six months * *

We interpret that language to mean that the court only has authority to grant a license to a person who is a law-abiding citizen, an assessed taxpayer and a male over twenty-one years old; and that if the court should grant a license to one who was not found by the court to be a law-abiding, male, assessed, taxpaying citizen, over twenty-one years of age, the license would be void. Unless the person applying for the license was found to fill the description prescribed by the statute, the court would have no authority to grant the license. This being true, the only question left in the case is whether the record must affirmatively show such facts in order that it may be said that the court had jurisdiction. There is a long line of decisions in this state, familiar to the bar, holding that it must. Railroad v. Young, 96 Mo. 39, and cases there cited. And the rule having been heretofore applied to dramshop license cases, must be applied to this case. State ex rel. v. Neosho, 57 Mo. App. 192; State v. Schneider, 47 Mo. App. 669.

Counsel for defendants have cited us to authority like that of Leonard v. Sparks, 117 Mo. 103, wherein it was held that where the facts touching the acquisition of jurisdiction by an inferior court fully appear in the record, the judgment of such court will be looked upon with as much favor as that of a superior court. But that case was a collateral attack and not a direct proceeding, as in certiorari. The writ of certiorari will reach, and render fatal, defects which would not be so in a collateral proceeding. Railroad v. Young, supra.

But, aside from whether this be a collateral or direct attack, we do not consider that sufficient facts have been made to appear to give the court jurisdiction. The position taken by defendants is, that the jurisdictional facts in this case are an application for license accompanied by a petition signed by certain described citizens of certain qualifications, as provided in section 8 of the session acts aforesaid. And that if the proper application is stated to have been made, and the record discloses a petition of the character required has been presented, then the court has jurisdiction and that it would be presumed, in the silence of the record, relating to sex, age, etc., that other facts, necessary to a proper exercise of the jurisdiction were found to exist by the court. But, in our opinion, jurisdiction does hot attach in the county court to grant a license except upon the application of “a law-abiding, assessed, taxpaying, male citizen, above the age of twenty-one years.” If the applicant was a-female, or was a minor, or lacked the other qualifications mentioned, the court would be without jurisdiction, for they have no power to hear an application from such a party. If the record disclosed such a party, the court could strike the application from the files.

It follows, therefore, that these facts can not be assumed and should have appeared somewhere in the record. And while these are facts which must be found by the court and are questions left exclusively to that court for determination, yet the record must somewhere show them, else it will fail to show jurisdiction.

The result is to affirm the judgment and it is so ordered.

All concur.