State v. Seebold

91 S.W. 491, 192 Mo. 720, 1906 Mo. LEXIS 11

• Court: Supreme Court of Missouri
• Decided: January 23, 1906
• Status: Published

Opinions

BURGESS, J.

On the 26th day of May, 1905, the grand jury of the city of St. Louis preferred an indictment against the defendant Seebold, charging him with having, on the 26th day of April, 1905, unlawfully sold intoxicating liquor without a license as a dramshopkeeper. It was also charged, and is shown upon the face of the indictment, that said defendant, on or prior to the 16th day of April, 1905, was a regularly licensed dramshop-keepér, and that said license was by the Excise Commissioner revoked for the reason that defendant had violated the provisions of the law governing dramshop-keepers by keeping his dramshop open on Sunday. The charge, therefore, is that defendant was conducting a dramshop without a license.

The indictment was tránsferred by the circuit court to the St. Louis Court of Criminal Correction, as required by law. Thereafter, upon motion of the defendant, the court last mentioned quashed said indictment upon the ground that the statutes of this State confer no authority upon said Excise Commissioner to revoke a dramshop-keeper’s license issued by him for the keeping open of such dramshop on Sunday, and that, therefore, the action of the Excise Commissioner in revoking defendant’s license was without authority, void and of no effect. The State appeals.

By section 3019, Revised Statutes 1899, the office of Excise Commissioner was created in cities then having or which might thereafter have a population of 200,000 inhabitants or more, and such commissioner vested with exclusive authority to grant dramshop licenses.

Section 3020 of said statutes provides that 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 him a statement in writing, that upon payment of the license tax required by law, a dramshop’ license will be issued to such applicant.

Section 3021 provides, among other things, that “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 laws of this State governing dramshops are found in article I, chapter 22, Revised Statutes 1899. Section 3011 of said article provides that ‘ ‘ any person having a license as a dramshop-keeper, who shall keep open such dramshop, or shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday, or upon the day of any general election in this State, shall, upon conviction thereof, be punished by a fine of not less than fifty nor more than two hundred dollars, shall forfeit such license, and shall not again be allowed to obtain a license to keep a dramshop for the term of two years next thereafter.”

The next section of this article (section 3012) provides that whenever it shall be shown to the county court (which court receives applications for and issues dramshop licenses in the State at large) that any dram-shop-keeper of the county has not at all times kept an orderly house, such court shall order the license of the dramshop-keeper to be revoked, and from the date of such order the dramshop-keeper shall be deemed to have no license and to be without the authority of law to act as a dramshop-keeper. The same section provides that the dramshop-keeper shall be notified in writing of any application for the revocation of his license five days before the order shall be made.

It will be observed that power is expressly conferred upon the Excise Commissioner 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 the State governing dramshops (Higgins v. Talty, 157 Mo. 280), among which provisions are that he shall not keep open such dramshop-, or sell, give away, or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday. [Section 3011, supra]. While defendant concedes the authority of the Excise Commissioner to revoke the license of a dramshopkeeper issued by him, for keeping a disorderly house, as was held in the Higgins case, he denies his authority to do so in this case, because he must find his authority so to do, if any he has, in the dramshop law; that for the violation of the Sunday law, the county court is not given power to revoke the license, but a forfeiture of such license results in consequence of the conviction of the dramshop-keeper of such violation; that, upon the other hand, the Excise Commissioner is, by section 3021, supra, given authority to revoke a license for any violation of the law of the State governing dramshops, which provision, if valid, and as construed by the State, would warrant the Excise Commissioner in revoking a license theretofore granted by hiru for keeping open a dramshop', or selling liquor in any quantity on Sunday, as well as for failure to keep an orderly house. But the authority of the Excise Commissioner to revoke the license of a dramshop-keeper in no way depends upon the fine, forfeiture or penalty which might be imposed upon such an offender, under section 3011, Revised Statutes 1899, against a dramshop-keeper outside of the city of St. Louis for the violation of that statute, for the reason that the exclusive power to grant dramshop licenses in the city of St. Louis, and to revoke them, is vested.in the Excise Commisioner, the causes for which such power of revocation may be exercised being prescribed by statute; that is, the'violation of any of the provisions of the laws of this State governing dram-shops.

It is fundamental that no one has a natural right to sell intoxicating liquor, because the tendency of its use is to deprave public morals, and to do so without a license from proper authority is unlawful. [Austin v. State, 10 Mo. 591; State ex rel. v. Moore, 84 Mo. App. 11; State ex rel. v. Hudson, 78 Mo. 302; State v. Bixman, 162 Mo, 1; Black on Intoxicating Liquors, sec. 24.] In the city of St. Louis the only authority to grant such license is vested in the Excise Commissioner. [Section 3019, supra; Higgins v. Talty, supra.] So it was held in the case last cited that a dramshop license is a mere permit, is not a contract between the State and the licensee in which the latter has vested rights, but is subject at all times to the police power of the State government, and may be revoked at any time it may see proper to do so for any violation of the law governing dram-shops, whether the license so provide or not, and under the statute, in the city of St. Louis, the Excise Commissioner has authority to revoke a license of a dramshopkeeper who. is keeping and conducting a disorderly and disreputable dramshop, and his action in doing so is not the exercise of a judicial power.

In Black on Intoxicating Liquors, section 189, it is 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. Plence 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 the 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.” [Cherry v. Commonwealth, 78 Va. 375; People ex rel. v. Wright, 3 Hun 306; Higgins v. Talty, supra.]

In Voight v. Board of Excise, 59 N. J. L. 358, 36 Atl. 686, 37 L. R. A. 292, it was contended that the license was property, and that it could not be taken away from the holder except by a judicial proceeding. The court, answering this contention, said: “We do not think that either of these contentions is well founded. A license is in no sense property. It is a mere temporary permit to do what otherwise would be illegal, issued in the exercise of the police power”— citing Lantz v. Hightstown, 46 N. J. L. 102; Board of Excise v. Barrie, 34 N. Y. 657; 11 Am. and Eng. Ency. Law, 634. The law being thus well settled that the licensee holds no contract which gives him a vested right under the license, that he holds a mere permit subject to revocation by the power which granted it for cause, it follows that the proceeding to revoke the license is not judicial in its character. If there are no property rights involved, there is nothing calling for the exercise of the judicial power, nor the judicial functions of the county court in revoking the license, and the county court, in acting in that behalf, instead of proceeding in the capacity of a court exercising judicial powers, would proceed in the capacity of an excise board as an agent of the State in a ministerial or administrative capacity, exercising the police powers and enforcing police regulations of the State in revoking the permit which the licensee had violated. In proceedings of this kind, Black on Intoxicating Liquors, section 194, states the law as follows: “The proceeding may be summary, and the authorities are not required to take the formal proceedings essential to form the basis of a judicial decision affecting life, liberty or property. Nor is this the species of proceeding in which the defendant is entitled, as a matter of constitutional right, to a trial by jury.” [Barnett v. County Court, 111 Mo. App. 693.]

It was expressly held in State ex rel. Hunt v. Bell, 119 Mo. 70, that the law in question is not subject to the objection that it is either a local or special law; and, while counsel for defendant do not question the correctness of that decision in respect of its general scope and meaning, they do challenge its correctness in that it confers upon the Excise Commissioner, in a city of two hundred thousand inhabitants or more, the power to revoke the license of any dramshop-keeper who shall violate any of the provisions of the laws of the State governing dramshops, while the statute with respect to licensed dramshop-keepers outside of such city provides that any dramshop-keeper who shall keep open such dramshop, or shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday, shall, upon conviction thereof, be punished by a fine and forfeiture of his license, and he shall not again be allowed to obtain a license to keep a dramshop for the term of two years next thereafter, thus inflicting different punisliments for the same acts in the same locality, the result of which is to make the excise law, in this respect, local and special, in violation of section 53 of article 4 of the Constitution. If, as we have said, a license to sell intoxicating liquors is not property, hut a mere privilege, subject to revocation or to such conditions as the State may see fit to impose (Voight v. Board of Excise, 59 N. J. L. 358; Board of Excise v. Barrie, 34 N. Y. 667; Higgins v. Talty, supra), the defendant is in no position to raise objection, and will not be heard to question the constitutionality of the excise law, because, in the first place, the revocation of such license is not punishment within the meaning of the law, and, because, in the second place, his personal or property rights were not affected by the act of the Excise Commissioner in revoking his license^and he has, therefore, no interest in defeating the law. The statute is assumed to be valid until some one complains whose rights it invades. ‘ ‘ Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have, a right to question the validity of the act, and not by strangers. To this extent only is it necessary to go, in order to secure and protect the rights of all persons against the unwarranted exercise of legislative power, and to this extent only, therefore, are courts of justice called on to interpose.” [Cooley’s Constitutional Limitations (7 Ed.), p. 232; Cunningham v. Railroad, 165 Mo. 270; State v. Hathaway, 106 Mo. 236.] In Jones v. Black, 48 Ala. 540, it is said: “Nor will a court listen to an objection made to tbe constitutionality of an act of the Legislature by a party whose rights it does not specially affect. An act of the Legislature will be assumed to be valid, until some one complains whose rights it invades; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. ’ ’ [Shehane v. Bailey, 110 Ala. 308.] Only such persons as are in some way prejudiced by an unconstitutional law can complain of it. [Commonwealth v. Wright, 79 Ky. 22; State ex rel. Kellogg v. Currens, 111 Wis. 431.]

A final contention is that harmony, if at all attainable, is always the object of judicial interpretation; that it is always the aim and purpose of the courts to reconcile various provisions of law bearing on the same subject and to give such construction to all such provisions as will harmonize them (State v. Pitts, 51 Mo. 133; Macke v. Byrd, 131 Mo. l. c. 690); and that complete harmony can be created between section 3011 of the dramshop act and section 3021 of the excise commissioner act by an interpretation which will give to the latter section the meaning that the Excise Commissioner has authority to revoke ány license by him granted, if the dramshop-keeper shall violate any of the provisions of the laws governing dramshop-keepers, in the same way and under the same circumstances under which such licenses may be forfeited as provided by section 3011. But this position seems untenable in this case, for the reason that the Legislature, in passing the excise commissioner act and creating the office of Excise Commissioner, intended to clothe such commissioner with full and exclusive power and authority to license dramshop-keepers and to revoke any license by him granted, if the dramshop-keeper to whom he has issued license shall violate any of the provisions of the laws of this State governing dramshops, regardless of the fact that a different course is required to he pursued in the case of a violation of such laws by dramshop-keepers outside cities of two hundred thousand inhabitants or more. The Excise Commissioner acts ministerially both in granting dramshop licenses and in revoking them, while under the dramshop law a trial, under the general statute for keeping open a dramshop and selling liquor on Sunday, would have to be before a court having jurisdiction, and in which a jury would be required should the defendant be inclined to demand a trial by jury. Such latter course would not be practicable in a large city like St. Louis, as past experience has demonstrated; hence, the enactment of the excise law.

Moreover, the two sections of the statutes last referred to have no connection with or reference to each other, except that section 3021 refers to the dramshop law in a general way as specifying the violations of that statute for which the Excise Commissioner is authorized to revoke the license of any dramshop-keeper issued by him.

Our conclusion is that the judgment should be reversed, with instructions to the trial court to overrule the demurrer and to proceed with the trial of the cause in accordance with the views herein expressed.

Gantt and Valliant, JJ., concur; Lamm, J., concurs in the result; Fox, J., dissents; Marshall, J., not sitting; Brace, G. J., absent.