Case v. Carney

• Decision Date: 05 March 1964
• Citation: 376 S.W.2d 492,213 Tenn. 597,17 McCanless 597
• Parties: William L. CASE, Appellant, v. Joseph A. CARNEY et al., Appellees. 17 McCanless 597, 213 Tenn. 597, 376 S.W.2d 492
• Court: Tennessee Supreme Court

Page 492

376 S.W.2d 492

William L. CASE, Appellant, v. Joseph A. CARNEY et al., Appellees.

17 McCanless 597, 213 Tenn. 597, 376 S.W.2d 492

Supreme Court of Tennessee.

March 5, 1964.

John T. Conners, Jr., Nashville, of counsel, Boult, Hunt, Cummings & Conners, Nashville, for appellant.

Robert B. Puryear, III, Nashville, for appellees.

HOLMES, Justice.

In September 1962, the appellant, an employee of the Atlantic Company, which operates eight markets in Nashville and Davidson County known as 'E-Z Food Shops', filed an application with the Beer Permit Board of the City of Nashville for a permit to sell beer for consumption off of its premises at its store located at 1201 Porter Road in Nashville. The Board denied appellant's application for such license without stating its reasons therefor. The appellant duly filed a petition for statutory certiorari in the Chancery Court of Davidson County, seeking a review of the action of the Board in denying this application and a trial de novo in the Chancery Court in conformity with T.C.A. Sec. 57-209, as amended. A writ of certiorari to the Board was issued, requiring the members of the Board 'to cause to be made certified and forwarded to' the Chancery Court a complete transcript of the proceedings had before the Board on appellant's application for such license. This writ was duly served upon the members of the Board, but no complete transcript of the proceedings before the Board was certified and forwarded to the Court.

The 1961 Amendment to T.C.A. Sec. 57-209 makes the provisions of T.C.A. Sec. 27-901 through Sec. 27-913 applicable to the review to be had in the Chancery Court in such a case T.C.A. Sec. 27-911 provides that the case shall be heard in the Chancery Court upon the proof introduced before the Board and upon such other evidence as either party may desire to introduce. The appellant testified by deposition in conformity with this Code Section. No other proof was taken in the Chancery Court.

Following the hearing in the Chancery Court, the Chancellor filed a memorandum opinion, which was made a part of the record, and which, among other things, states:

'This deposition (of the appellant) reveals that may people attended the public hearing and made statements, however, no record of this testimony before the Board was included in the papers filed.

'There is no indication in the record of any irregularity in the hearing before the Board and no issue is made of the personal qualifications of the petitioner or the adequacy of the premises for which the permit is sought. In the copy of the Board's minutes filed herein it gave no reason for refusing to issue petitioner a permit.

* * *

'From the foregoing the Court concludes that the Board did not act 'illegally, arbitrarily, capriciously and unreasonably,' in refusing to issue the petitioner a permit.

'The petition will be dismissed at the cost of the petitioner.'

The decree of the Chancery Court recites:

'* * * the Court finds that the Beer Permit Board of the City of Nashville did not act illegally, arbitrarily, capriciously or unreasonably in refusing to issue the petitioner a permit.'

Following the overruling of his motion for a new trial in the Chancery Court, the appellant duly perfected his appeal.

The appellee has filed in this Court a 'Motion to Dismiss Assignments of Error' upon the ground they do not meet the requirements of Rule 14 of this Court in that the assignments fail to show 'specifically wherein the action complained of is erroneous, and how it prejudiced rights of the appellant' and failed to make 'reference to the pages of the record where the ruling of the court on matters constituting errors of law appears'. Rule 14(2), 209 Tenn. 793, 794.

The Assignments of Errors, Brief and Argument of appellant substantially comply with Rule 14. Furthermore, as pointed out by the present Chief Justice, in speaking for the Court, in Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 658, 315 S.W.2d 245, 249:

'When it appears to the Court that no harm can be done to the one who makes the motion to enforce the Rule and that an injustice would be done by enforcing the Rule, then the Court should use grace and discretion in the administering of the rule.'

The 'Motion to Dismiss Assignments of Error' is overruled.

The appellant contends that, since the Chancellor found 'no issue is made of the personal qualifications of the petitioner or the adequacy of the premises for which the permit is sought', he is entitled, as a matter of law, to have the license issued. As authority for this contention, he relies upon Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260, in which the Court, speaking through Mr. Justice Felts, held that Chapter 105 of the Public Acts of 1961, which amended T.C.A. Sec. 57-205 and Sec. 57-209, was constitutional. That case reviews in detail the changes in our statutes regulating the sale of beer and fixing the scope of judicial review of the action of beer boards in refusing to issue, or in revoking, licenses. In that case, the Court stated:

'The Legislature had plenary power to prohibit the business of manufacture and sale of beer absolutely, or to legalize such business and license and regulate it as it saw fit, and to give an applicant a legal right to a permit on complying with the conditions prescribed, and a right to a review of the board's refusal of such permit by the statutory writ of certiorari.'

The Fentress County case was dealing with a county beer board, whose authority is derived from T.C.A. Sec. 57-205, and not with the beer board of a municipality, whose authority is derived from T.C.A. Sec. 57-208 and from city ordinances enacted pursuant to the authority conferred by T.C.A. Sec. 57-208, which Section was not amended by Ch. 105 of the Acts of 1961.

T.C.A. Sec. 57-208 provides:

'All incorporated cities and towns in the state of Tennessee are authorized to pass proper ordinances governing the issuance and revocation of licenses for the storage, sale, manufacture and/or distribution of such beer and/or other beverages as herein prescribed within the corporate limits, providing a board of persons before whom such application shall be made, but the power of such cities to issue licenses shall in no event be greater than the power herein granted to counties, but cities and towns may impose additional restrictions, fixing zones and territories and providing hours of opening and closing and such other rules and regulations as will promote public health, morals and safety as they may by ordinance provide.'

In the recent case of De Caro v. City of Collierville, Tenn., 373 S.W.2d 466, the Court, speaking through Mr. Chief Justice Burnett, held that Collierville had authority, under T.C.A. Sec. 57-208, to pass an ordinance limiting the sale of beer in that city to seven locations. In so holding, the Court stated:

'Neither this case (Fentress County Beer Board vs. Cravens, supra) nor the 1961 amendment in any way attempts to strike from the Code Section 57-208, T.C.A., which provides in effect that municipalities may enact ordinances governing the issuance and revocation of beer licenses.

* * *

'In the Ketner case (Ketner vs. Clabo, 189 Tenn. 260, 225 S.W.2d 54) above referred to, an ordinance had been passed limiting the number of permits to sell beer. This was held valid under Sec. 57-208, T.C.A., which, as we have said, is still in full force and effect.'

A duly certified copy of the ordinances of the City of Nashville passed pursuant to the authority of T.C.A. Sec. 57-208 is included in this record. Sec. 20-56 of the Nashville Municipal Code provides:

'No permit for the sale of beer, or any other beverage of an alcholic content of not more than five per cent by weight, shall be issued where such sale would cause congestion of traffic or interfere with schools, churches, or other places of public gathering, or where the place of business to be operated under such permit (excluding existing permits and the reissuance or renewals thereof) is less than two hundred and fifty feet from a church, park, school, kindergarten or public playground, such distance to be measured from nearest property line to property line, or where the applicant has once held a permit and it has been revoked less than a year from...