State ex rel. Waggoner v. Seibert , 97 Mo. App. 212 ( 1902 )

BLAND, P. J.

— 1. Neither the dramshop act nor the act creating the office of excise commissioner requires that a petition for.a dramshop license shall be verified by the affidavit of the applicant. The only affidavit the applicant is required to file is the one prescribed by section 2994 of the dramshop act. This affidavit has no reference to the petition for the license. Its purpose is to furnish the basis for the assessment of an advalorem tax on the merchandise of the dramshopkeeper. The affidavit made by E. D. Morgan to the petition, and sworn to before R. D. Thompson, as deputy excise commissioner, was extra judicie. Not being required by law it did not add to nor detract from the petition or malee it any the better or any the worse. It was therefore immaterial whether or not the excise commissioner had authority to appoint a deputy or whether the affidavit was made before an officer authorized by law to-administer oaths, and we are of the opinion that the learned circuit judge committed error in annulling the license for the reason that the affidavit to the petition was not made by an officer authorized to administer oaths.

2. It is alleged in the petition for the writ that the petition for the license was filed on the twenty-fourth day of September, 1901, and that the license was issued the following day in violation of section 2997 of the dramshop act (R. S. 1899) as amended by an act of the General Assembly approved March 13, 1901 (Session Acts of 1901, p. 142). By the terms of section 3020, (R. S. 1899) pertaining to a petition for a dramshop license filed with the excise commissioner, section 2997 of the dramshop act must be read'into that section (3020) and of course the section as” amended by the Act of March 13, 1901.

The amended act requires that the petition for the license “shall be filed in the office of the clerk of the county court not less than ten days before the first day of the court to which it is to be presented, and remain on file for public inspection, and by the said clerk laid before the court at the first term thereafter; and all dramshop licenses issued contrary to the provisions of this section shall be void.” Writing this amendment into section 3020, supra, it would not be competent for the excise commissioner to issue a license until the petition therefor had been filed in his office and open for public inspection at least ten days before the granting of the license.

The obvious purpose of the amendment requiring, the petition to be oh file for at least ten days for public inspection before a license shall'be granted is to afford the public, whose business, good neighborhood, or peace might be affected by the location of a dramshop in their midst, an opportunity to make prbtest and to defend their property and personal interests against the proposed dramshop; in other words, to make the public a party to the proceedings and to afford it an opportunity to be heard in opposition to the granting of the license. If this be so then the provision is a jurisdictional one and a license issued on a petition, which had not been on file and open for public inspection for at least ten days, would, in the language of the amendment, “be void.”

It has been repeatedly held by this court that all the jurisdictional facts, to authorize the granting of a dramshop license by the county court or excise commissioner, must affirmatively appear somewhere on the face of the proceedings. State v. Police Commissioners, 14 Mo. App. 297; State ex rel. Campbell v. Heege, 37 Mo. App. (St. L.) 338; State ex rel. Reider v. Moniteau Co. Ct., 45 Mo. App. (K. C.) 387; State ex rel. v. Mayor and Board of Alderman of Neosho, 57 Mo. App. (St. L.) 192; State ex rel. v. Higgins, 71 Mo. App. 180. This ruling is supported both on account of the nature of the subject-matter and on the rule that the jurisdiction of inferior tribunals, not proceeding according to the course of the common law, must appear affirmatively on the face of the proceedings. Kidd et al. v. Guibar, 63 Mo. 342; Howard v. Clark et al., 43 Mo. 344; Sanders v. Rains et al., 10 Mo. 770.

The return of the excise commissioner to the writ of. certiorari shows that the petition for the dramshop license was lodged with him on September 24, and that be immediately notified some of the persons who had signed the remonstrance that he would taire the matter up the next day; that he did take it up on the next day, and after investigating the petition ordered the license to be issued upon the payment, by the applicants, of the license tax and the giving of the requisite bond.

This action was not only irregular and premature, but was in excess of the jurisdiction of the excise commissioner. He had no jurisdiction to pass upon the petition and application until the petition had been on file in his office for at least ten days and open to the inspection of the public. For want of jurisdiction to issue the license at the time it was issued, the license is void.

The judgment is affirmed.

Barclay and Goode., JJ., concur.