State ex rel. Stout v. Duncan

REYNOLDS, P. J. (after stating the facts).— Without passing upon this application for supersedeas or in any wise determining that point, we concluded to hear the case on its merits, and it has accordingly been fully argued by counsel. At the outset, it is well to observe that, prior to the Act of May 14, 1909, it was only by the consent and appearance of the parties there, that the court of common pleas had jurisdiction in this case. [Scott Hardware — 409 — Co. v. Riddle, 84 Mo. App. 275.] It is urged by counsel that the county court of Butler county, in accepting the assessment list of the taxpayers, based on the ownership of property on the first day of June, 1908, filed January 21, 1909, which as will be seen, is set out in the judgment of the county court as the basis of its action in considering the number of signers to the petition and remonstrance, committed error; that as this proceeding was had in the county court on the 9th of February, 1910, the assessment roll of June 1, 1909, which under the law was required to be filed January 21,1910, should have been accepted as the basis for determination of the number of petitioners and remonstrators. Counsel on each side have argued this proposition quite extensively. We dispose of it, however, by the statement that it is the well-settled law of this state that the writ of certiorari brings up for review only the record proper and not the evidence. Going as far back as the case of In the matter of the Saline Co. subscription, Thompson et al., petitioners, 45 Mo. 52 (decided 1869), and coming down to State ex rel. v. Wells, 210 Mo. 601, l. c. 621 (decided March 81, 1908), the decisions of our Supreme and Appellate Courts, folloAving the common law rule, are uniform and unbroken in so holding. The fact that the county court, in its order granting the license, saAv fit to enter into that order a recital of the evidence upon which it acted in determining as to the number of signers, does not help the matter, and does not bring that evidence under review. It is the recital of evidence and has no place in the order, or judgment. It is beyond the power of the county court, under the color of a judgment, to incorporate or attempt to bring into the record proper the evidence upon which- it acted, and so require the upper court, on certiorari, to review or consider that evidence. In State ex rel. Harrah v. Cauthorn, 40 Mo. App. 94, the Kansas City Court of Appeals passing on the office of the Avrit of certiorari, Avhere -the matter of the — 410 — application for a dramshop license “was under review, stating that the writ only brings up the record of the inferior court and that its office is to reach only such defects or errors in the proceedings as appear upon the face of the record, holds that the only question for consideration in cases of this kind is whether such record shows jurisdiction in the county court. The sole question is one of authority, not one of the propriety or impropriety of the action of that tribunal; nor is it one to be determined upon the evidence which was or should have been heard or considered by that court in acting upon the application. It is further said by Judge Ellison in the Oauthorn case that cases of this kind are of the class which require that the face of the record of the county court should show jurisdiction of the court over the subject-matter in order that its action may be valid, but that under the general rule prevailing in this state the matter of jurisdiction is to be determined, not from the mere order of the county court, but from an inspection of the record proper. “It is in every way sufficient,” says Judge Ellison, “if any part of the record proper recites the necessary requisites to give jurisdiction to the tribunal before which the proceedings are had.” Referring directly to the application and order concerning dramshop licenses, the learned judge concludes that “where a statute requires a statement of the qualification or character of the petitioners to be stated in the petition, or any particular part of the record, it must be so stated in order to give jurisdiction, but, in the absence of such requirement, we are clearly of the' opinion that necessary jurisdictional facts need not be stated in'the petition, if they be made to.appear in other parts of the record.” Referring to the case of State ex rel. Campbell v. Heege, 37 Mo. App. 338, a decision by this court, Judge Ellison, in the above case, calls attention to the fact that while the decision in the Campbell case is an apparent exception to the current of authority, an examination — 411 — of it shows that while this court put the decision on the absence of jurisdictional facts in the petition, it is to be borne in mind that the necessary jurisdictional facts did not appear in any part of the record. The same question came up again before the Kansas City Court of Appeals in the case of State ex rel. Jones v. County Court of Cooper County, 66 Mo. App. 96. In this latter case, also on certiorari issued by the circuit court, in which the circuit court annulled a dramshop license, Judge Ellison, speaking for the Kansas City Court of Appeals, states the rule of law in such cases to be 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. Quoting the requirements of the Dramshop Law of 1891, in so far as they relate to the requirements of the law to the issue of a dramshop license, the Kansas City Court of Appeals held the language of the statute to mean that the county court only has authority to grant a license to a person possessing the qualifications required, and that if the court should grant a license to one who was not found by the court to be a law-abiding citizen, etc., the license will be void. “This being true,” says the court, Judge Ellison speaking for it, “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.” Citing authorities in support of this, the court further holds that the proceedings by certiorari do not come within the principle or rule announced in cases like that of Leonard v. Sparks, 117 Mo. 103, 22 S. W. 899, in which 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 Judge Ellison correctly holds that in Leonard v. Sparks, the judgment was attacked collaterally and not by direct proceeding, as is done in — 412 — certiorari; that the writ of certiorari will reach and render fatal defects which would not be so in a collateral proceeding. The action of the circuit court in quashing the proceedings in the county court was sustained. The cause most frequently referred to in the various decisions of the appellate courts and of the later ones of the Supreme Court, in matters of this kind, that of Chicago, Rock Island & Pacific Railway Co. v. Young et al., Judges of Clinton County Court, 96 Mo. 39, 8 S. W. 776, commonly cited as Railroad v. Young, may be said to be a controlling decision of the Supreme Court in this state on questions arising under certiorari. It was one of certiorari bringing into the circuit court certain proceeding's for opening- a public road, commenced and had in the county court. Judge Sherwood, speaking for the Supreme Court, says that whenever the proceedings of the county court, summary in their nature, are had, with the view to take or condemn the property of the citizen, it must affirmatively appear on the face of such proceedings that all facts necessary to confer jurisdiction existed before final action taken in the tribunal depriving the owner of his property. While this was a case involving the taking of private property for a quasi public use, that is, condemnation of a railroad right of way, the principle there announced has been uniformly applied by our courts in matters and proceedings in the county courts relating to dramshop licenses and kindred subjects. Applying the principle of the cases above cited to the facts in the case at bar, it will be seen, by reference to page 254, Session Acts of 1907, that by act approved May 13, 1907, section 2993a provides among other things, “license shall not be granted to keep a dramshop in a building occupied or used for an immoral or unlawful purpose, nor in any room or portion of a building connected by any entrance or exit or other means of communication with any room or place used for an immoral or unlawful purpose.” We hold this — 413 — to be a prohibition and restriction upon the.power of the county court to grant license to anyone to keep a dramshop in any place not so situate, and that it must affirmatively appear that the dramshop is not to be kept at any place so situate, and that unless it does affirmatively appear, somewhere in the record, either in the application or by the order granting the dramshop license, that this state of facts does exist and is present in the case, the county court is without jurisdiction to grant the license. Nowhere in this record before us or which was before the Cape Girardeau Court of Common Pleas does it affirmatively appear that this requirement of the statute was met. Hence there was a fatal lack of showing of authority in the county court, under this section to grant the license. The recital in the order of the county court, “that the applicant’s application in all things conforms to the requirements of section 2993a of Dramshop Law, approved May 13, 1907,” does not meet the case nor fulfill the requirements of the law. As was said in Parks v. Heman, 7 Mo. App. 14, l. c. 18, “In pleading conditions imposed by law, to say that plaintiff has duly performed all conditions on his part, tenders no issue of fact.” This has frequently been cited and applied as authority in passing upon the sufficiency of recitals in judgments of inferior tribunals in proceedings of bodies acting under special and limited powers. Applying that to the case at bar, the statement that the applicant for the license had complied with the provisions of law, is a mere statement of a conclusion and not of a constitutive fact. This general statement of compliance with this section of the statute, without setting out the fact showing that the party is within the law, is not the statement of a fact which is essential to the right to the license. That is one of the jurisdictional facts only upon the presence of which the court had power to act. It must be clearly set out somewhere in the record itself and stated as a fact and not as a — 414 — mere conclusion of the court upon the facts, and it nowhere appears in this record that the building in which it was proposed to keep the dramshop was not to be used or occupied for an immoral or unlawful purpose, nor in any room or portion of a building connected, etc., with any such room or place used, etc. If it is meant by the statement that “the applicant’s application in all things conforms to the requirements of section 2993a of the Dramshop Law, approved May 13, 1907,” that it contains this important recital, then it is not borne out by the application, for that application nowhere states that the dramshop is not to be kept “in a building occupied or used for an immoral or unlawful purpose,” etc., as required by that section. It follows that the action of the county court in granting the license was without authority and the license granted is void. Other questions are raised, but we do not consider or pass upon any but the above, which is decisive. The action of the Cape Girardeau Court' of Common Pleas is affirmed. Nortoni, J., concurs; Gtoode} J., not sitting.