Summary
In State ex rel. Henderson v. Cook (in banc), 353 Mo. 272, 182 S.W.2d 292, the court further, at least impliedly, qualified the application of this test by stating that the petition could not be amended to state a cause of action without a departure.
Summary of this case from State v. CrainOpinion
No. 38948.
September 5, 1944.
1. INTOXICATING LIQUORS: Injunctions: Administrative Law: Revocation of License: Determination of Supervisor Conclusive: Not Subject to Control by Injunction. In the absence of fraud, the decision of the Supervisor of Liquor Control in a proceeding to revoke or suspend a license is final and not subject to control by injunction or mandamus.
2. PROHIBITION: Injunctions: Pleading: Intoxicating Liquors: Fraud Not Pleaded: Court Without Jurisdiction. No fraud being pleaded, the court was without jurisdiction to issue a restraining order against the decree of the Supervisor of Liquor Control, and prohibition will lie.
3. PROHIBITION: Injunctions: Restraining Order Without Notice: Failure to Plead in Trial Court no Bar. Where a restraining order was issued without notice and respondent asserts his jurisdiction, failure to file a pleading in respondent's court attacking his jurisdiction is no bar to prohibition.
4. PROHIBITION: Costs: Case Not Moot. Termination of the liquor license suspension period during the pendency of this proceeding did not render it moot, as the parties have a right to a final determination of their rights. And the public interest and costs are involved.
5. INTOXICATING LIQUORS: Administrative Law: Certiorari: Suspension of License: Review by Certiorari. Certiorari is the proper remedy to review the legality of a suspension of a liquor license by the Supervision of Liquor Control.
PROVISIONAL RULE MADE ABSOLUTE.
Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for relator.
(1) The Supreme Court has original jurisdiction of the writ of prohibition. Art. VI, Sec. 3, Mo. Constitution. (2) In the case at bar it was not necessary that the jurisdiction of the lower court be first challenged. 4 Houts, Missouri Pleading Practice, sec. 1227, p. 466; State ex rel. v. Sevier, 88 S.W.2d 154; State ex rel. Ross v. Sevier, 334 Mo. 977, 69 S.W.2d 662; State ex rel. v. Bright, 224 Mo. 514; State ex rel. Anheuser Busch Brewing Assn. v. Eby, 170 Mo. 497; State ex rel. v. Harris, 81 S.W.2d 632. (3) Prohibition lies to prevent the exercise of a judicial power where there is a total lack of jurisdiction or where the court is proceeding in excess of its jurisdiction and where there is no other adequate remedy for the relator to pursue as in the instant case. Secs. 4902, 4905, 4913, 4932, 4947, R.S. 1939; State ex rel. Judah v. Fort, 210 Mo. 512; State ex rel. Graham v. Seehorn, 246 Mo. 568; State ex rel. Orr v. Latshaw, 237 S.W. 770; State ex rel. Garry Realty Co. v. Hall, 17 S.W.2d 935, 322 Mo. 1118; State ex rel. Stone v. Thomas, 159 S.W.2d 600, 349 Mo. 22; High on Extraordinary Remedies (3 Ed.), sec. 762, p. 705; State ex rel. Bader v. Flynn, 159 S.W.2d 379; State ex rel. Public Serv. Comm. v. Mulloy, 62 S.W.2d 730, 333 Mo. 282; State ex rel. Castlen v. Mulloy, 55 S.W.2d 294; State v. Owen, 121 S.W.2d 765. (4) Equity courts will not interfere by injunction for the purpose of controlling act of public officers constituting inferior tribunals on matters properly relating to their jurisdiction. 4 Houts, Missouri Pleading Practice, sec. 1021, p. 157; Oliver v. Orrick, 220 Mo. App. 614, 288 S.W. 966; Hughes v. State Board of Health, 137 S.W.2d 523, 345 Mo. 995; State v. Flynn, 159 S.W.2d 379; State v. Noel, 140 S.W.2d 57. (5) The proper remedy, if any at all, is by certiorari, and, in such case, only the record would be up for review. State v. Anderson, 101 S.W.2d 530; 2 High on Injunctions (4 Ed.), sec. 1242, p. 1249, sec. 1311, p. 1324; Gaertner v. City of Fond du Lac, 34 Wis. 497; McLellan v. Mayor, 99 Wis. 544, 75 N.W. 308. (6) The Circuit Court of Jackson County, Missouri, has no jurisdiction over the relator, Supervisor of the Department of Liquor Control. State ex rel. Gardner v. Hall, 282 Mo. 426; State ex rel. Highway Comm. v. Bates, 317 Mo. 696; Ward v. Public Service Comm., 341 Mo. 227. (7) The case at bar does not present a moot question and abstract proposition of law. State ex rel. Brown v. Bird, 73 S.W.2d 821.
Thomas J. Brown and Donald H. Latshaw for respondent.
(1) Plea to the jurisdiction should have been filed and overruled in circuit court before application for writ of prohibition can be considered by this court. State ex rel. Natl. Rys. v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28; State ex rel. American Bankers Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924. (2) Where the jurisdiction of the inferior court rests upon facts, any error in such court in determining its jurisdiction can be corrected by appeal, and prohibition will not lie. State ex rel. Crouse v. Mills, 231 Mo. 493, 133 S.W. 22; State ex rel. American Pigment Chemical Co. v. Shields, 237 Mo. 329, 141 S.W. 585; Coleman v. Dalton, 71 Mo. App. 14; State ex rel. Frank v. Porterfield, 221 Mo. App. 847, 285 S.W. 786; State ex rel. Holthaus v. Holtcamp, 218 Mo. App. 440, 277 S.W. 607; State ex rel. Federal Reserve Life Ins. Co. v. Wright, 88 S.W.2d 427. (3) An executive officer who refuses to do what he should do may be reached by mandamus, and, if he attempts to do what he should not do, he is amenable to injunction. Secs. 4902, 4905, 4913, 4932, 4947, R.S. 1939; State ex rel. v. Johnson, 234 Mo. 338, 137 S.W. 595; Carson v. Sullivan, Secretary of State, 284 Mo. 353, 223 S.W. 571; State ex rel. v. Roach, 190 S.W. 277; State ex rel. v. County Court, 91 Mo. 452, 3 S.W. 844; State ex rel. v. Saline County, 51 Mo. 350; Killian v. Brith Sholom Congregation, 154 S.W.2d 387; Easley Town Council v. Pegg, 41 S.E. 18, 63 S.Ct. 98. (4) Writ of certiorari to review proceedings brings up for review only the record and does not bring up the evidence upon which the court acted, nor can the reviewing court hear further evidence. State ex rel. Bentley v. Reynolds, 190 Mo. 578, 89 S.W. 877. (5) The Circuit Court of Jackson County, Missouri, has jurisdiction over the relator, Supervisor of Liquor Control of Missouri, personal service having been duly had upon said relator in Jackson County, Missouri, at time of filing injunction suit, in compliance with the venue and service of writ statutes. Secs. 871, 880, R.S. 1939; State ex rel. Gardner v. Hall, 282 Mo. 426, 221 S.W. 708; State ex rel. State Highway Comm. v. Bates, 317 Mo. 696, 296 S.W. 418; Ward v. Public Serv. Comm., 341 Mo. 227, 108 S.W.2d 136; State ex rel. v. Mo. Workmen's Comp. Comm., 234 Mo. App. 384, 132 S.W.2d 683, l.c. 685. (6) The case at bar presents a moot question and an abstract proposition of law. Personal Finance Co. v. Day, 349 Mo. 1139, 164 S.W.2d 273.
This case comes to the writer on reassignment. It is an original proceeding in prohibition by which relator, Supervisor of the Department of Liquor Control of Missouri, seeks to prohibit respondent from proceeding to hear and determine an injunction action pending in his court styled, "State of Missouri ex rel. Vivian Bailey, doing business as Vicky's Skyhigh Tavern, plaintiff, vs. W.G. Henderson, Supervisor of Liquor Control of the State of Missouri, defendant." In that action, the respondent, without notice, issued a temporary restraining order prohibiting this relator from enforcing his orders suspending two intoxicating liquor licenses issued to the plaintiff herein at two taverns located in Kansas City, Missouri.
The facts are that on December 10, 1943, a hearing was had upon two citations issued by relator to plaintiff to inquire into the charges: first, that on November 18, 1943, she had intoxicating liquor stored off the premises covered by her license, without having first notified the relator that she had possession of intoxicating liquor which was not kept upon the premises covered by her permit; second, that she had purchased liquor from persons other than wholesale dealers licensed by the State of Missouri; and, third, that she had in her possession intoxicating liquor which did not have thereon excise stamps furnished by the relator. At this hearing, at which plaintiff appeared and presented witnesses, relator found her guilty and entered an order suspending her two intoxicating liquor licenses for sixty days, starting January 3, 1944.
In plaintiff's petition, she does not allege that she was not given a legal hearing before relator. In fact, relator complied with Sections 4889 and 4905 of R.S. (Mo.) 1939. This is not disputed, but her petition does allege relator "arbitrarily, capriciously, wilfully, wrongfully, and unlawfully issued" the orders of suspension of plaintiff's liquor licenses.
It is clear that plaintiff was attempting to contend that the relator decided the case wrong and that respondent should try the issue on the merits. The petition contained no allegations of fraud. Sections 4889 and 4905, supra, vest in the Supervisor, or relator, the exclusive power to revoke or suspend licenses. The decision of the Supervisor on the merits is final, and the Statute does not allow an appeal or writ of error. In discharging that function, he exercises a judicial discretion which cannot be controlled by injunction or mandamus. State ex rel. Renner v. Noel, Supervisor of Liquor Control, 346 Mo. 286, 140 S.W.2d 57. "Courts of Equity will not sit in review of proceedings of subordinate tribunals; and, where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed." State ex rel. and to Use of Bader, Excise Commissioner of City of St. Louis, v. Flynn, Judge, 159 S.W.2d 379.
We have already stated that the petition did not contain any allegations of fraud; therefore, no cause of action was stated, nor could one be stated by an amendment, except by an amendment of an allegation of fraud which would be a departure. Since the petition wholly failed to state a cause of action, the respondent was without jurisdiction when he issued the restraining order. Under such circumstances, prohibition will lie.
Respondent contends that our writ should not issue because relator had not filed a pleading in his court attacking his jurisdiction of this case. It is to be remembered that respondent on December 28, 1943, issued his restraining order without notice. There is no suggestion that such pleading would have been of any avail; on the contrary, respondent in his return denies that plaintiff's petition fails to state a cause of action. In such cases, relator's failure to file such a motion is not a bar to his application for this writ. State ex rel. Ross v. Sevier, 334 Mo. 977, 69 S.W.2d 662; State ex rel. Moberly v. Sevier, 337 Mo. 1174, 88 S.W.2d 154.
Respondent contends that these proceedings have become a moot question for the reason that the sixty-day suspension period had expired sixty days after January 3, 1944. Our preliminary writ was issued during this period, which prohibited [294] the respondent from taking any further proceedings during the pendency of this case. We think that it is not a moot case, for the reason that these parties have a right to a final determination of their rights. Moreover, the public will be affected by the proper enforcement of the liquor laws, and there is, also, a matter of costs. State ex rel. Brown et al. v. Bird, 73 S.W.2d 821.
If the plaintiff wanted to test the legality of the action of the relator in his orders of suspension, and not to review the evidence, his proper remedy would have been by certiorari. State ex rel. Spencer v. Anderson, 101 S.W.2d 530.
For the reasons above stated, our provisional rule in prohibition is made absolute. All concur.