
    STATE ex rel. ARNOLD, Relator, v. LICHTA et al., Respondents.
    St Louis Court of Appeals,
    March 31, 1908.
    1. CERTIORARI: Appellate Practice: Rule of Court. The Court of Appeals has no rule in respect to the issuance or non-issuance of writs of certiorari and where such writ has been issued and return made thereon the court will proceed to dispose of the cause on its merits.
    2. COUNTY COURTS: Dramshop License: Ministerial Function: Revocation of License. A county court in revoking the license of a dramshop keeper on the charge that he does not at all times keep an orderly house, does not exercise a judicial, but an administrative function.
    3.-: -: Judicial Function. But, in determining whether or not it had jurisdiction to entertain charges against a dramshop keeper for keeping a disorderly house and to revoke his license, the county court exercised a judicial function.
    4.-: -: -: Certiorari. A county court, in determining whether a dramshop keeper has done acts which entitle it to revoke his license, acts in the exercise of its function as a court of record, and its action is subject to review by a writ of certiorari, if it revokes a license without jurisdiction to do so for the cause alleged, or if it exceeds its jurisdiction in doing so.
    
      6. DRAMSHOP KEEPER: Disorderly House: Selling Liquor to Minors. A disorderly house is any house to which people resort to the disturbance of people lawfully within the place, as a house Used or resorted to for illegal or immoral purposes; a single sale or gift of intoxicating liquor to minors is not a violation of section 3012, Revised Statutes 1899, requiring a dramshop keeper to keep “at all times an orderly house.”
    6. -: -: -: Forfeiture of License. While the license of a dramshop keeper may he forfeited for failure to keep an orderly house as provided in section 3012, Revised Statute 1899, there is no provision authorizing the county court to revoke his license for selling or giving away liquor to minors in violation of sections 2995 and 3009, Revised Statutes 1899.
    7. - — : -: -: -. Although in granting a license to a dramshop keeper the State enters no contractual relation with him and he has no property interest in his license, nevertheless the power of a county court to revoke a license is controlled hy statute just as its power to grant a license is, and it cannot revoke a license except upon conditions prescribed by statute.
    Original petition for writ of certiorari in proceeding to revoke dramshop license.
    Order oe county court revoking license set aside.
    
      E. P. Rosenberger, Prosecuting Attorney of Montgomery County, Missouri, for respondents; H. W. Johnson of counsel.
    
      Ball & Ball for relator.
    Statement. — On February 4, 1908, the couuty court of Montgomery county granted to relator, W. H. Arnold, a license to keep a dramshop on lot 7, block 5, in the city of Wellsville, in said county, for a period of sis months. Relator paid the license tax, gave the statutory bond and otherwise complied with the dram-shop act and received his license, and. on February 8, 1908, was conducting a dramshop under his license. On the twenty-first of the same month Albert Stuck made affidavit before E. P. Rosenberger, notary public, to tbe effect, that he was nineteen years of age on January 24, 1908, and that on or about February eighth of the same year, in company with Albert Peery, he went into relator’s dramshop, and William Dixon, bartender for relator, served affiant and Peery each with a drink of whisky, and that Peery at the time was twenty years of age. Using this affidavit as a foundation, L. Nutter and five other citizens of Wellsville filed a petition in the county court, charging relator with having unlawfully sold and given away intoxicating liquors, on February 8, 1908, to Albert Stuck, a minor, and also to Albert Peery, a minor, and charged that relator had suffered intoxicating liquors to be dispensed in his dramshop to said minors, and prayed that relator’s license as a dramshop, keeper be revoked for thus violating the law prohibiting a dramshop keeper from selling or giving away intoxicating liquor to any minor. On the filing of the petition a summons, accompanied by a copy of the petition, was issued out of the county court, commanding the relator to appear before said court on the eleventh day of M'arch, 1908, to answer the complaint filed against him and show cause, if any he had, why his license as a dramshop keeper should not be revoked. Relator appeared before the county court and filed his return to the petition.
    The return or answer states, in substance, that relator at no time sold or gave away any intoxicating liquors to Stuck or Peery, and that he gave his bartender express and implicit orders not to sell intoxicating liquors to minors, nor to permit the same to be done on his premises,. and not to permit minors to visit or remain in his dramshop; that if the bartender furnished intoxicating liquor to any minor or minors it was against relator’s instructions and contrary to his will, denied that the bartender furnished any liquor whatever to Stuck or Peery, and alleged that relator had posted inside and outside Ms dramshop a printed sign baying tbe inscription, “No minors will be served and are not allowed in my saloon.” For further return relator alleged that tbe allegations of tbe complaint stated no cause, under tbe law, authorizing tbe county court to revoke bis dramshop license, and alleged that tbe county court had no jurisdiction to revoke bis license for tbe offense alleged in tbe petition. Tbe county court beard tbe evidence and found that “William H. Arnold, at and in tbe county of Montgomery and State of Missouri, being then and there a licensed dramshop keeper as aforesaid, on tbe eighth day of* February, 1908, did then and there unlawfully and knowingly sell, give away and otherwise dispose of and suffer tbe same to be done about bis premises certain intoxicating liquor, to-wit: one gill of whisky unto one Albert Stuck; and unto one Albert Peery, both minors and under tbe age of twenty-one years, and contrary to tbe provisions of tbe statutes of tbe State of Missouri. And tbe court doth further find tbe aforesaid William H. Arnold guilty in manner and form as charged in tbe specifications and that be has not at all times kept an orderly bouse.” On this finding the court entered an order or judgment revoking Arnold’s dramshop license, the order to take effect at eleven o’clock p. m., on Saturday, March 28, 1908, and taxed tbe cost of tbe proceedings against Arnold. Arnold filed an unavailing motion to set aside tbe order revoking bis license. On March 16, 1908, Arnold presented bis petition to one of tbe judges of this court, praying that a writ of certiorari be issued, directed to tbe judges of tbe county court of said Montgomery county, commanding them to certify to this court a full and complete transcript of tbe record of tbe proceedings in tbe Arnold matter and to show cause, if any they bad, why such proceedings should not be reversed and set aside. Tbe writ was duly issued and served upon respondents, wbo baye filed a full and complete transcript of the proceedings (a summary of which is stated aboye). With their return respondents filed a motion containing fifteen grounds for a dismissal of the proceedings. The cause has been ably and exhaustively argued by counsel- representing both sides and submitted to the court for its decision.
   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 judgment 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, 31 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 is 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 violated 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 purpose 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 conviction 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 change 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 conditions 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.  