(dissenting).
I respectfully dissent. The issue is whether the circuit court is permitted to take evidence at the hearing on a petition for review where the supervisor of liquor control refused to renew a liquor by the drink license but did not afford the licensee any hearing.
The duty of the circuit court is to determine whether the decision of the supervisor is authorized by law. Section 311.700(2), RSMo 1969. The supervisor’s decision not to renew was upon his finding that Jasper Mirabile was not a person of good moral character. Mirabile was managing officer of the corporation which held the license and which had operated a restaurant and bar since about 1961.
The circuit court believed it had to hear evidence in order to decide whether the supervisor’s decision was or was not authorized by law.
If the supervisor had sought to revoke a license or to suspend a license even for only a few days, he is required by law to give notice of charges and hold an evidentiary hearing. Section 311.690, RSMo 1969. But under the principal opinion, the licensee is not entitled to a hearing if his right to do business is terminated by a refusal to renew the license.
Revocation and nonrenewal accomplish the same result — the licensee is out of business.
In my opinion, the legislature recognized that the holder of a license has a property interest in its continuation and that is why the notice and hearing are required for suspension and revocation. I believe that due process and equal protection require that the holder of a license be afforded a hearing before the supervisor on the issue of license renewal before he is put out of business. Furthermore, it is my opinion that equal protection of law requires that a licensee be afforded the same or substantially the same right to notice and hearing as a licensee receives when suspension or revocation is the question.
In this case, the circuit court undertook to receive evidence in order to perform its review function under the law. Had the supervisor afforded the licensee a hearing in which the licensee had an opportunity to present evidence and argument refuting or explaining the charges and evidence against him, the circuit court would have a record before it upon which it could perform its review function. The so-called record filed by the supervisor merely contains whatever the supervisor wants it to contain. He may simply include material which, in his opinion, supports his conclusion. It may consist of totally incorrect information but the supervisor may honestly believe it to be correct. But the inaccurate or incorrect information cannot be shown to be such unless there is a .hearing in which both sides can be heard.
I recognize that the position I take is contrary to prior Missouri eases referred to in the principal opinion and which concern the renewal of a license. In my opinion, the earlier cases which hold that a licensee has no right to a hearing before the supervisor on the issue of renewal of a license were incorrectly decided and should be overruled.
. I do not believe it is realistic to suggest, as the principal opinion does, that persons who receive a liquor license gauge their arrangements for financing, leasing, employment of personnel, contracts with suppliers, and other matters to an expectancy of being in business for one year — the term of a license. To the contrary, common experience teaches that the investment made in many restaurants where liquor is sold is very substantial and that the investment is made and the commitments entered into with the actual expectation of deriving sub*375stantial revenue from liquor sales over a period of many years.
In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), cited in the principal opinion, the court, referring to its decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), said, “There we held again that while the Twenty-first Amendment did not abrogate a requirement of procedural due process, Wisconsin v. Constantineau, 400 U.S. 483, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), it did grant the states broad authority over the distribution and sale of liquor.”
Thus it appears that a liquor licensee does have some claim to procedural due process in connection with the renewal of his license.
In Peppermint Lounge, Inc. v. Wright, 498 S.W.2d 749, 753 (Mo.1973), the issue was whether due process required that an applicant for an original (not renewal) liquor license was entitled to a hearing. This court held that due process did not require such a hearing and analogizing to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), said, “Similarly, appellants have no protectable property interest in a liquor license. Not having acquired any interest in a liquor license; having only the acquisitive desire for and a unilateral expectation of a license and no basis of a claim of ‘entitlement’ thereto, appellants have no right under the Fourteenth Amendment to a hearing on the question of its issuance.”
I have no quarrel with this court’s holding in Peppermint Lounge because it dealt with an original license. The applicants had not acquired any interest in a continuation of the license because one had never been issued.
But in the instant case the license had been issued and renewed since about 1961. In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), the question concerned the suspension of a driver’s license. The court said, “Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. [citing cases.] This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege’.” 402 U.S. 539, 91 S.Ct. 1589.
Whatever may be said about the sale and distribution of liquor being under the ban of law, the fact remains that it is a lawful enterprise for one to engage in if he has the proper license. That license is his livelihood just as surely as a driver’s license, once issued, is important to the licensee’s ability to earn a living.
ditath, supra, does not say a liquor license holder is not entitled to procedural dug process. To the contrary, HSotfr ⅞¾⅜⅛½⅛ the Twenty-first Amendment did not abrogate a requirement of procedural due process. 412 U.S. at 515, 93 S.Ct. 2222. The principal opinion in the instant case seems to hold that a liquor licensee is not entitled to procedural due process in connection with the renewal of his license. In my opinion, that is not a correct statement of the law.
In my opinion, the due process clause of the Fourteenth Amendment entitles a liquor licensee to a meaningful hearing before the supervisor on the question of license renewal. I also believe that the equal protection clause requires that the same or substantially the same rights be afforded the licensee on renewal as is afforded a licensee with respect to revocation or suspension.
Since there was no hearing afforded the licensee by the liquor supervisor, I am of the opinion that the circuit court should not be prohibited from receiving evidence on review in order to decide whether the refus*376al to renew was authorized by law as I think that, in this case, the reception of evidence is essential to due process. I realize that this dissent has gone beyond the specific issue presented in this prohibition case but I believe that such was necessary because the principal opinion seems to address itself to the overall constitutionality of various provisions of the Missouri Liquor Control Law. It may be that a major portion of the principal opinion is dictum in this case. If so — then so is the major portion of this dissent.
On the specific question of whether or not this court should prohibit the circuit court from taking testimony in this case, I am of the opinion that our preliminary rule in prohibition should be quashed. Section 311.700, RSMo 1969, requires the circuit court to determine whether or not the decision of the supervisor was authorized by law or as some cases have put it, whether the decision was arbitrary or capricious. Here, there had been no hearing before the supervisor and therefore the only way the circuit judge can make the decision required of him is to find out what the decision of the supervisor was actually based upon in order to decide if that decision was, in fact, an abuse of discretion.
Otherwise the circuit court is relegated to accepting as factually true whatever the supervisor chooses to put into his letter advising the licensee of his refusal to renew and merely “rubber stamp” the decision of the supervisor.
In order to afford any meaningful review in a case such as this, the circuit court, in my opinion, should not be prohibited from receiving evidence with respect to the basis of the supervisor’s decision. I would quash our preliminary rule as having been improvidently granted and, if an appeal is taken from the circuit court’s judgment, rule issues presented on that appeal at that time.