O'Brien v. Department of Alcoholic Beverage Control

• Decision Date: 19 December 1947
• Citation: 306 Ky. 238,206 S.W.2d 941
• Parties: O'BRIEN v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL et al.
• Court: Kentucky Court of Appeals

206 S.W.2d 941

306 Ky. 238

O'BRIEN v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL et al.

Court of Appeals of Kentucky

December 19, 1947

Appeal from Circuit Court, Franklin County; William B. Ardery Judge.

Proceeding in the matter of the application of W. E. McGurk and another for retail package license for intoxicating liquors, wherein applicants appealed to the Alcoholic Beverage Control Board from the refusal of Anthony W. O'Brien, City Alcoholic Administrator for Lexington, to approve the application. From a judgment of the Franklin circuit court, affirming an order of the Department of Alcoholic Beverage Control directing the issuance of a license, Anthony W. O'Brien appeals.

Affirmed.

Strother Kiser, of Lexington, for appellant.

Weldon Shouse, Asst. Atty. Gen., R. P. Moloney, Jr., and Drake &amp Howard, all of Lexington, Frank Dailey, of Frankfort, and Wallis M. Bailey and D. P. Moloney, both of Lexington, for appellees.

LATIMER Justice.

This action grew out of the refusal of Anthony W. O'Brien City Alcoholic Administrator for Lexington, to approve the application of appellees, W. E. McGurk and B. J. Bloemer, for retail package license. Appeal was thereupon made to the Alcoholic Beverage Control Board, hereafter referred to as Board, which, after an exhaustive hearing, directed the issuance of a license to each of the appellees.

The City Administrator appealed from this order to the Franklin Circuit Court. The Franklin Circuit Court affirmed the order of the Board. The City Administrator prosecutes this appeal.

It was stipulated in substance that there were no personal objections to appellees, McGurk and Bloemer; that their applications were in proper order; and that each of them is qualified.

The Board, pursuant to KRS 241.060, on August 20, 1946, presented and published for each county in this Commonwealth, in which local option was not in effect, a retail drink and retail package liquor quota, wherein the quota for the City of Lexington was fixed [306 Ky. 240] at 38 retail package and 22 retail drink licenses. On February 7, 1947, a revised quota was published by the Board wherein quota for the City of Lexington was fixed at 41 retail package and 24 retail drink liquor licenses. Obviously, appellees made their application subsequent to these announced changes in quota.

Appellant contends that an ordinance adopted in 1939 by the City Commissioners of the City of Lexington limiting retail package licenses to 35, and a subsequent ordinance in 1941 limiting retail drink licenses to 20, both of which were approved by the local Administrator, deprived and took from the Board the power and authority to alter or change that quota without the consent of the City Commissioners and the local Administrator for that City.

Appellees insist that since the Board's finding was pursuant to the provisions of KRS 243.570, the review by the Circuit Court is limited to the following: Whether or not (a) the Board acted without or in excess of its powers; (b) the order appealed from was procured by fraud; (c) any substantial evidence supports the order appealed from. Since there is no suggestion of any fraud in the procurement of the Board's order, (b) above may immediately be eliminated.

We shall deal first with the question of whether or not the City has a right, independent of the Board, to limit licenses within its territorial limits, or, to put it another way, as between the City and the State, which has the superior right to control. The right and power to control fall within the police power. We must all agree that ordinarily municipalities have no original police power but only such as is conferred upon them by the State either expressly or impliedly. The Legislature may regulate in any manner which its discretion may dictate, however, subject to constitutional limitations. It may, if it chooses, delegate to municipalities authority to regulate and control traffic in intoxicating liquors, and in so doing it may empower municipalities to pass ordinances adopting regulations for such control. Or, the Legislature may, if it so chooses, provide other state agencies and empower them to regulate and control the traffic. See 30 Am.Jur., Intoxicating Liquors, Section 29 and following.

The cases cited and relied upon by appellant have to do with regulations at a time when the municipalities had been empowered to control such traffic. In the case of Christian Moerlein...