Higgins v. Talty

BURGESS, J. Tbe defendant Joseph Roselli is a resident of tbe city of St. Louis, and a keeper of a dramsbop in said city under a license granted to him by tbe plaintiff as excise commissioner, on or about tbe first day of February, 1900. On April 4th, 1900, complaint in writing was made to plaintiff as excise commissioner by one P. M. Reynolds, a police officer of said city, that Roselli was keeping and con — 285 — ducting a disreputable and disorderly dramsbop, and was violating tbe statutes of tbe State governing dramsbop beepers, whereupon plaintiff on tbe same day gave Eoselli a written notice tbat be would bear said complaint and investigate tbe same on tbe 12th day of April, 1900, at tbe bour of 2:30 p. m. at tbe office of tbe plaintiff in said city. On tbe 9tb day of April, 1900, defendant Boselli applied for and obtained from tbe defendant, tbe Hon. John A. Talty, judge of tbe circuit court of tbe city of St. Louis, an order requiring tbe plaintiff to sbow cause on Thursday, April 12, 1900, at ten o’clock a. m., in division No. 1 of tbe circuit court of tbe city of St. Louis, why be should not be prohibited, restrained and enjoined from proceeding to exercise further jurisdiction or cognizance to try said Koselli upon tbe charge of violating tbe laws governing dramshops, or upon any other charge, and prohibited, restrained and enjoined him in tbe meantime from proceeding to exercise • further jurisdiction or cognizance of said proceeding. Thereafter, on tbe 11th day of April, 1900, plaintiff herein applied to and obtained from one of tbe judges of this court a writ of .prohibition against tbe defendants Roselli and Talty, prohibiting them from further continuing said prohibitory proceeding against tbe excise commissioner, and requiring them, to show cause before tbe Supreme Court in banc, on or before tbe 24th day of April, 1900, why tbe writ should not be made peremptory. Defendant Roselli for plea to the temporary writ, alleges tbat it should not have been granted for tbe reason tbat tbe petition does not state any ground for tbe relief prayed for, and because under tbe Constitution and laws of this State plaintiff as excise commissioner of tbe city of St. Louis has not, and could not have, any jurisdiction, right or authority of law to try tbe issue of fact as to whether this defendant is or is not guilty of some violation of the laws of this State govern — 286 — ing dramshops, or to exercise any judicial function whatever. Eor his separate return to the order to show cause the defendant, the Hon. John A. Talty, alleges that a peremptory writ should not issue against him as judge of the circuit court, because said court has jurisdiction to inquire by what authority said Higgins as excise commissioner is about to take the alleged threatened action, inasmuch as such action requires the exercise of judicial power by him. The sections of the statute (B. S. 1899) under which the license was granted, and under which the excise commissioner was proceeding when prohibited from so doing are as follows: “Sec. 3019. Excise coMmissioneb’s office established: authority: appointment: tenuee. In all cities in this State which now have or may hereafter have a population of 200,-000 inhabitants or more, there is hereby created the office of excise commissioner, who shall have exclusive authority to grant dramshop licenses; and the commissioner shall be appointed by and hold his office during the pleasure of the Governor. “Sec. 3020. OoMMIssionee : granting deamsi-iop license: peoceedings. Any person desiring a dramshop license shall present a petition to the excise commissioner, as required by the laws of this State, and if the petition is signed by the requisite number of petitioners, and the applicant is a person of good moral character, the commissioner shall give to the applicant a statement in writing, that upon the payment of the license tax required by law, a dramshop license will be issued to such applicant. ■ “Sec. 3021. PAYMENT OF LICENSE TAX: RECEIPTS: revocation of license. Upon receiving the statement mentioned in section 3020 of this article, the applicant for dramshop license shall pay to the city collector the amount — 287 — fixed by law as necessary to secure dramshop license, taking therefor duplicate receipts, one of which shall be filed with the bity treasurer, and the other shall be filed with the excise commissioner, who shall then issue dramshop license to the applicant'for the period provided by law; - and the commissioner shall have authority to revoke any license by him, granted, if the dramshop keeper to whom license has been issued shall violate any of the provisions of the laws of this State governing dramshops.” The vital question presented by this record is whether the action which was about to be taken by plaintiff as excise-commissioner with respect to the charges against Eoselli was judicial. If so the Hon. John A. Talty had jurisdiction to issue the writ of prohibition, otherwise he had no power to do so. No person has the right to sell intoxicating liquors in this State as a dramshop keeper, without having a license from the proper authority authorizing him to do so, and in the city of St. Louis the exclusive authority to grant such licenses is vested in the excise commissioner of the city. [Sec. 3019, supra.] And such licenses when issued are merely permits, are not contracts between the State and the licensee, in which the latter has vested rights, but is subject at all times to the police powers of the State government, and may be revoked at any time that it may see proper to do so, for any violation of the laws governing dramshops whether licenses so provide or not, but in the case at bar that clause in the statute which provides that the commissioner shall have power to revoke any license by him granted if the dramshop keeper to whom license has been issued shall violate any of the provisions of the laws of this State governing dramshops, among which is that he shall at all times keep an orderly house (sec. 3012, E. S. 1899), is as much part of the license as if copied into — 288 — it, and the licensee must be beld to hare accepted bis license upon these terms and conditions. In the case of Metropolitan Board of Excise v. Barrie, 34 N. Y. loc. cit. 667, it was said: “These licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. They have neither the qualities of a contract nor of property, but are merely temporary permits to do what otherwise would be an offense against a general law. They form a portion of the internal police system of.the State; and are issued in the exercise of its police powers, and are subject to the direction of the State government, which may modify, revoke or continue them, as it may deem fit. If the act of 1857 had declared that licenses under it should be irrevocable (which it does not, but by its very terms they are revocable), the legislatures of subsequent years would not have been bound by the declaration. The necessary powers of the legislature over all subjects of internal police being a part of the general grant of legislative power given by the Constitution, can not be sold, given away or relinquished.” In Calder v. Kurby, 5 Gray 597, a license to sell intoxicating liquors, was granted for a definite period, but before the expiration of the time it was annulled, and it was claimed by the licensee that the license was a contract, and within the protection of the Constitution of the United States. But the court held otherwise, and in course of the opinion said: “The whole argument of the counsel for the plaintiff is founded on a fallacy. A license authorizing a person to retail spirituous liquors does not create any contract between him and the government. It bears no resemblance to an act of incorporation, by which, in consideration of the sup — 289 — posed benefits to tbe public, certain rights and privileges are granted by tbe legislature to individuals, under wbicb they embark their skill, enterprise and capital. The statute regulating licensed houses has a very different scope and purpose. It was intended to restrain and prohibit the indiscriminate sale of certain articles deemed to be injurious to the welfare of the community. The effect of a license is merely to permit-a person to carry on the trade under certain regulations and to exempt him from the penalties provided for ■ unlawful sales. It therefore contains none of the elements of a contract.It is manifest that this statute, like those authorizing the.licensing of theatrical exhibitions and shows, sales of fire-works and the like, was a mere police regulation, intended to regulate trade, prevent injurious practices, and promote the good order and welfare of the community, and liable to be modified and repealed, whenever, in the judgment of the legislature, it failed to accomplish these objects.” There are many decisions to the same effect. [State v. Holmes, 38 N. H. 225; Fell v. State, 42 Md. 71; Beer Company v. Massachusetts, 97 U. S. 25; Stone v. Mississippi ex rel., 101 U. S. 814; Moore v. State, 48 Miss. 147; Columbus City v. Cutcomp, 61 Iowa 672; Powell v. State, 69 Ala. 10; Commonwealth v. Brennon, 103 Mass. 70.] In the ease of La Croix v. County Commissioners, 50 Conn. 321, it was held “that a license to sell intoxicating liquors, whether revocable in terms or not, is neither a contract nor property in any constitutional sense, but is subject at all times to the police powers of the State government.” In People ex rel. v. Wright, 3 Hun. 306, under a law in all of its salient features almost exactly like our own, the relators had been granted a license to sell intoxicating liquors by the board of commissioners of excise of the village of Delhi, and before the license expired, they were summoned — 290 — to appear before the boards granting the license to show why they should not be revoked for specified violations of the statute in regard to the sale of intoxicating liquors. At the hearing the licensees made several objections to the right of the board to proceed, which were overruled. On review of the proceeding before the commissioner, the Supreme Court held that under the law authorizing the board of excise commissioners to revoke the license granted to any person if they should become satisfied that he ha.s violated any of the provisions of the act, the licensee was not entitled to trial by j^y. The same rule is announced in People ex rel. v. Coms. of Police, 59 N. Y. 92, in which it is also held that “the power to license the sale of intoxicating liquors, and to cancel such license when granted is vested in the legislature. .The mode and manner in which this shall be done rests in the discretion of that body.” In the recent case of Voight v. Board of Excise Commissioners, 59 N. J. L. 358, it was held that a statute regulating the sale of intoxicating liquors, which provides that if the holder of a license shall permit intoxicating liquors to be sold upon his premises contrary to law, his license shall thereby become forfeited, and that upon complaint of any three persons, residents and legal voters of the municipality wherein such licenses is used and exercised, verified by affidavit, being presented to the body that granted the licenses, alleging that such license had been forfeited, and specifying the acts complained of which shall be alleged to have worked such forfeiture, it shall be the duty of such body to proceed to an investigation, etc., that this statutory provision is not in contravention of the constitutional provision preserving the right of trial by jury, and that the licensing body have a right to proceed under it without waiting until the holder of the license has been indicted and convicted by the criminal — 291 — ccrarts for bis violation of tbe law. Tbe proceeding was merely by way of investigation, and was in no sense a trial. Roselli’s license is not a contract witb tbe State, nor property witbin tbe meaning of tbe Constitution, but is subject at all times to tbe police powers of tbe State government, by wbicb it is provided that sucb licenses may be revoked by tbe excise commissioner for violation of tbe law and tbis without waiting until Roselli bas been 'convicted by a court having jurisdiction for violation of tbe law, and, that in proceeding to do so be was not acting judicially, but under the power conferred upon him by statute witb respect to subject-matter over which be bas exclusive control. Our conclusion is that tbe circuit court of tbe city of St. Louis bad no jurisdiction whatever over tbe case, and that tbe writ of prohibition should be awarded as prayed. The' costs of tbis proceeding are adjudged against tbe defendant Joseph Roselli, All concur.