Boyd v. Burmaster

• Decision Date: 09 February 1952
• Parties: BOYD et al. v. BURMASTER et al. 29 Beeler 338, 193 Tenn. 338, 246 S.W.2d 36
• Court: Tennessee Supreme Court

Page 36

246 S.W.2d 36

BOYD et al. v. BURMASTER et al.

29 Beeler 338, 193 Tenn. 338, 246 S.W.2d 36

Supreme Court of Tennessee.

Feb. 9, 1952.

Clyde W. Key, Knoxville, for complainants.

Taylor & Badgett, Knoxville, for defendants.

PREWITT, Justice.

This is a controversy over the licensing and operation of a liquor store in Oak Ridge in Anderson County. The cause was tried on bill and answer and the Chancellor found in favor of the defendants Burmaster and others. The complainant commissioners have appealed.

The ultimate question is whether the complainant commissioners have the final authority in determining whether an applicant shall have the privilege of selling liquor in Oak Ridge or whether the final authority is vested in the Commissioner of Finance and Taxation.

Chapter 49, Public Acts of 1939, authorized the sale of liquor in this state in counties voting for it by local option. This act is carried into the Code at Section 6648.4 et seq. This act has been amended several times but the amendment that affects this case was enacted by the legislature as Chapter 284, Public Acts of 1949 and particularly Section 5 of that act, Code Section 6648.12a, which amended Section 8, Chapter 49, Public Acts of 1939, Code Section 6648.11.

The provisions of Chapter 49, Public Acts of 1939, as amended by said Act of 1949 provides as follows:

'6648.12a. Certificate to be submitted with application for license; petition and hearing when applicant unable to obtain certificate.--Every applicant for a license under this act shall submit with his application a certificate signed by the county judge or chairman of the county court in which the licensed premises are to be located if outside the corporate limits of a municipality and outside of a civil district meeting the requirements set out in section 5, subsection (6) hereof [Sec. 6648.8], or if the application be for a license within a civil district meeting the requirements set out in section 5, subsection (6) hereof [Sec. 6648.8], a certificate signed by a majority of the three-member commission for the civil district in which the premises are to be located or if within a municipality from the mayor or a majority of the commission, city council, or legislative council, of said municipality by whatsoever name designated, or if said municipality has no mayor, from the highest executive of the municipality. Said certificate must state that the applicant or applicants, who are to be in actual charge of said business, are of good moral character and are personally known to the official or officials signing the certificate, and if a corporation, that the executive officers or those in control are of good moral character and personally known to the official or officials signing said certificate, or that such official or officials have made a careful investigation of the applicant's general character and from such investigation it is found to be good, and that in his opinion the applicant will refrain from a violation of this act, and is entitled to the license applied for. The commissioner shall consider this certificate together with all other evidence which he may obtain by investigation or otherwise in determining whether said license shall be issued.

'Provided, that in those cases where the applicant is unable to obtain such certificate from the proper certifying official, if the applicant shall file with the commissioner together with his application a petition in duplicate stating that he has made application to said certifying official for said certificate and same has been wrongfully, illegally or arbitrarily refused and otherwise setting forth reasons under this act why he is entitled to such license notwithstanding the refusal aforesaid and wherein said refusal is wrongful, illegal or arbitrary, the commissioner shall hold a hearing to determine whether said license shall be issued. The commissioner shall give the applicant and the certifying official ten (10) days' notice of the time and place of said hearing, to be served in the same manner and within the same time as other notices of hearings prescribed herein and shall, at the same time, furnish the certifying official with a copy of the applicant's petition. The hearing shall be held as are other hearings provided for under this act. The commissioner shall make such order granting or refusing said license as, in his discretion, the entire record at such hearing shall justify and such order shall be effective from its date. Any party to said hearing may review said order by common-law writ of certiorari in the manner provided for review of all other orders under subsection (8) of section 14 [Sec. 6648.17] of this act. (1949, ch. 284, sec. 5...