87 Mo. 533 | Mo. | 1885
In September, 18S5, Joseph Loring filed an application to the Boone- county court for a dramshop license, under what is known as ‘ ‘ The Down; ing” or “high license law,” having complied with all the provisions of said law; and the county court so found, but refused the license, holding that the act approved March 25, 1875, prohibiting the granting of dramshop licenses within three miles of the State University was not repealed by the “Downing law” and
Judge Burckhartt’s return to the rule upon him states what occurred in his court, and in addition, that after the adjournment of his court in obedience to the order for a peremptory writ and prior to the service of the rule made by this court upon him, and without any notice to him of this proceeding the peremptory writ of mandamus was issued by the clerk of the said court and placed in the hands of the sheriff of Boone county for service. The clerk’s return is substantially the same, but it appears from the testimony»' that he issued the writ and placed it in the hands of the sheriff for service about one-half an hour before the rule to show cause issued by this court was served upon him. Before issuing the writ he knew that proceedings had been instituted in this court to prohibit the issuance of the writ, and that the rule to show cause had been made, and had been informed that he was a party to the proceeding.
The nature of the writ of prohibition and the office
The county court of Boone county, under the law, •could have issued to the applicant a dramshop license if the three mile act was repealed by the “Downing law,” and this was a question for j udicial determination. The circuit court possesses a superintending control over the county court. Sec. 1102, R. S., 1879. ' And that •superintending control may be exercised by means of a mandamus or prohibition. State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601. Whether the county court was authorized to grant a dramshop license for a saloon, -within three miles of the State University, depended upon the effect of the “Downing law” upon the three mile act. If the “Downing law” repealed it, the •county court had, and if not, it had not authority to grant the license. The circuit court in the mandamus proceeding had jurisdiction to determine that question, and that it erroneously decided it, if such should be our •opinion, does not affect the jurisdiction of the court. Whenever a court errs in expounding a statute, it gives or denies a right, which it is not, strictly speaking, authorized to do ; and in every case, with as much pro
In the case of State ex rel. Fitzpatrick v. Meyers, supra, the circuit court of Nodaway county rendered a judgment in a mandamus proceeding awarding a peremptory - writ against the county judges commanding them to fix and assess the tax and issue to Fitzpatrick a. dramshop license. The county court had refused the license, upon its construction of the “Downing law,H that it required a petition to be signed by two-thirds of the assessed taxpaying citizens of the entire city. This court held that a petition signed by two-thirds of the taxpayers of the block where the dramshop was to be kept was sufficient and affirmed the judgment of the circuit court. Suppose that the circuit court erred in its construction of the law, and that .the county court was right, would it be contended that this court could have interfered by prohibition to arrest the execution of the judgment of the circuit court? Does the jurisdiction of a court depend upon the correctness or incorrectness of its decisions? And, if it properly decides a. question is it to be held that it had jurisdiction, but if iteres the jurisdiction is to be denied? If it has jurisdiction to decide right, it has jurisdiction to decide wrongr and the only remedy for the party aggrieved in the • latter case is an appeal or writ of error. In the case above supposed, the petitioner for a dramshop license may not have had to his petition the names of a majority of the taxpayers of the block, and the county court may have so held and refused the petition, but suppose the circuit-court, against the law and the facts, had determined otherwise, would it be contended that it had no jurisdiction so to decide the question, but only to decide it right?
No man has a.right -to anything contrary to law, but
Another objection to this proceeding, so far as-Judge Burckhartt is concerned, is that the judgment had been rendered and his court adjourned to court in-course before the rule issued by this court was served upon him and before he had any notice of this proceeding. The writ of prohibition “is a preventive rather than a corrective remedy and issues only to prevent the commission of a future act, and not to undo an act-already performed.” High on Ex. Legal Rem., sec. 766 ; United States v. Hoffman, 4 Wall. 158. But at page-
The writ of prohibition is denied.