State v. Kirk

112 Mo. App. 447 | Mo. Ct. App. | 1905

NORTONI, J.

Defendant was a bartender in the employ of Wm. H. Barnett, a dramshop keeper, who owned and maintained a licensed dramshop at the town of Cottonwood Point in Pemiscot county. Charges were preferred against Wm. H. Barnett in the county court of said county under the provisions of section 3012 of the Eevised Statutes of 1899, to the effect that he had not at all times kept an orderly house. Upon a hearing thereof, the county court revoked his said license which had at some time theretofore been granted him by said court. Barnett then filed his affidavit and bond for an appeal of said proceeding to the circuit court of Pemiscot county. The county court denied him an appeal therein. He then sued out in the circuit court of said county, a temporary writ of mandamus, commanding said county court to grant such appeal. Upon a hearing in the circuit court of the mandamus proceeding, the court dismissed the cause and denied the writ, holding that Barnett was not entitled to an appeal from an order of the county court revoking his license aforesaid. Barnett perfected an appeal from said judgment to this court. That case was argued and determined here adversely to him and is reported, Barnett v. Pemiscot County Court, 111 Mo. App. 693. While this mandamus proceeding was pending, Wm. H. Barnett continued his saloon business at Cottonwood Point on the faith of his contention that the county court had no right to revoke his license and that he was entitled to an appeal from such proceeding. His bartender, Pete Kirk, the defendant in this case, sold liquor for him over the bar of said dramshop after said license was revoked, the same as before. The prosecuting attorney of Pemiscot county informed against him in the circuit court of said county for selling intoxicating liquors without first taking out a license as a dramshop keeper. The charge is not denied.

The facts are all one way as to defendant selling liquor after the county court had made an order revoking the license. The only defense was that the county court had no right to revoke such license and that Wm. H. Barnett’s proffered affidavit and bond for appeal in the county court, filed in due time, had operated as a supersedeas of the judgment of such court and that his license was still in force. The defendant was convicted in the circuit court and fined $40, from which conviction he appeals to this court and makes the same contention here.

This controversy is settled by the ruling of this court in the case of Barnett v. Pemiscot County Court, supra, where the court said: “Our conclusion is that the county court in revoking the license of appellant, acted in an administrative and ministerial capacity as the agent of the State, exercising the police powers thereof to the end that the business otherwise unlawful, should not be conducted in a manner contrary to the permit theretofore by it granted and that the proceeding contemplated by section 3012 which was had in this case by the county court is in no sense judicial for the reason that no right of life, liberty or property was therein involved nor adjudicated and that there was therefore no case or cause pending in the county court as is contemplated by the statute granting appeal therefrom to the circuit court,” citing Higgins v. Talty, 157 Mo. 280, 57 S. W. 724. The judgment of the circuit court was therefore affirmed, holding that the county court had full power and jurisdiction to revoke said license and that there was no appeal therefrom. This ruling dispenses with the defense set up in the case at bar. The judgment is> therefore affirmed.

All concur.