Chiordi v. Jernigan

• Citation: 129 P.2d 640,46 N.M. 396
• Decision Date: 23 September 1942
• Docket Number: No. 4707.,4707.
• Parties: CHIORDIv.JERNIGAN, Chief of Division of Liquor Control of Bureau of Revenue.
• Court: Supreme Court of New Mexico

46 N.M. 396

129 P.2d 640

CHIORDI

v.JERNIGAN, Chief of Division of Liquor Control of Bureau of Revenue.

No. 4707.

Supreme Court of New Mexico.

Sept. 23, 1942.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Proceeding in the matter of Retailer Liquor License Number 812, Tito Chiordi, licensee. S. T. Jernigan, as Chief of Division of Liquor Control of the Bureau of Revenue of the State of New Mexico, entered an order finding that Tito Chiordi was guilty as charged and revoked the license, and Tito Chiordi appealed to the district court. From a judgment of the district court setting aside the order of the Chief of Division of Liquor Control, the Chief of the Division of Liquor Control appeals.

Case remanded to district court with instructions to set aside its judgment and remand cause to Chief of Division of Liquor Control with directions to him to set aside his order and to proceed in accordance with opinion.

The Liquor Control Act is a “police regulation”, the stated purpose of which is to protect the public health, safety and morals of every community in the state. Laws 1939, c. 236, § 801.

Barker & Remley, of Santa Fe, for appellant.

Rodey, Dickason & Sloan, of Albuquerque, for appellee.

BRICE, Chief Justice.

The question is whether the district court erred in setting aside an order of the Chief of Division of Liquor Control (hereinafter called “Chief of Division”) revoking the appellee's retail license for the sale of intoxicating liquor in the City of Albuquerque.

The appellee was granted by the Board of Liquor Control a retail liquor license for the sale of intoxicating liquor in the City of Albuquerque subsequent to the issuance of a similar license to him by the City of Albuquerque. Before he had established his business the Chief of Division filed a charge against him under § 1703, N.M.L. 1939, c. 236, seeking to revoke his license upon the ground that he was not the real party interested in the business to be conducted under the state license granted to him, by which it is charged appellee violated § 701 (a) (5) of Ch. 236, N.M.L.1939, which is as follows:

“The following classes of persons shall be prohibited from receiving licenses under the provisions of this Act: ***

“(5) A person who is not the real party in interest in the business to be conducted under the license for which application is made;” and § 1701 of said act as amended by § 10 of Ch. 80, N.M.L.1941, as follows:

“Whenever the Chief of Division, in any hearing in this Article provided for *** shall find that any liquor license has: ***

“(e) made any material false statement in his application for the license granted him under the provisions of this Act *** he may suspend or revoke the license of such licensee.”

The specific charge is that appellee is not the real person interested in the liquor business which is to be carried on by virtue of the license in question.

Provision is made by § 1703 of the Act of 1939, supra, for the filing of charges, the service of process and a hearing. It is further provided:

“(i) At any hearing on an Order to Show Cause the Chief of Division shall cause to be made a Record of Hearing which shall record (a) the style of the proceedings, (b) the nature of the proceedings including a copy of the Charge and a copy of the Order to Show Cause, each showing the return of service thereof, (c) the place, date and time of the hearing and all continuances or recesses of such hearing, (d) the appearance or non-appearance of the licensee, (e) if the licensee appear with an attorney, the name and address of such attorney, (f) a transcript of all evidence and testimony, and a copy or record of all exhibits introduced in evidence, (g) the findings of the Chief of Division as to whether or not the licensee is guilty of the acts, omissions or violations set out in the charge, (h) the order of the Chief of Division dismissing the proceedings on any alleged ground urged for revocation or suspension of which he does not find the licensee guilty, or the order of suspension or revocation, and if of suspension, the period for which the license is suspended.”

The parties appeared in person and by counsel and after the taking of testimony the Chief of Division entered an order finding “that the defendant is guilty as charged” and thereupon revoked his retail liquor dealer's license.

The appellee appealed to the District Court of Santa Fe County, as provided by § 1705(a) of said act, as follows: “Any licensee aggrieved by any finding or findings of guilt or order of suspension, shall have the right within 30 days after the entry of such finding to appeal to the District Court of Santa Fe County for a review of such findings or finding, and/or order of suspension or revocation of license. The appeal shall be taken by filing a petition for review in the District Court of Santa Fe County setting forth the grounds of complaint against any finding of guilt or order of suspension or revocation. The matter on appeal shall be heard by the Judge of said Court without a jury, and such Court shall hear such appeal at the earliest possible time granting the matter of the appeal a preference on the docket. The judge, for good cause shown may receive evidence in such proceedings in addition to that appearing in the Record of Hearing and shall set aside and void any order or finding which is not sustained by, or has been overcome by, substantial, competent, relevant and credible evidence.”

The case was tried in the district court upon the testimony heard before the Chief of Division with the additional stipulation that appellee's father is in the liquor business; that he holds a dealer's license; that he is a citizen of the United States and qualified to hold a license. That appellee, prior to securing said license was an employee of his father, and is a citizen of the United States.

[1][2] The liquor control act is a police regulation and its purpose is, as stated therein, “to protect the public health, safety and morals of every community in this State.” Section 801. Opportunity is given each county and city of more than five thousand population to prohibit the sale of intoxicating liquors therein. No person can sell liquors unless duly licensed to do so. An applicant for a license must measure up to the requirements of the law, and the power of suspension and revocation of licenses is adequate. In those communities in which the citizens prefer the sale of intoxicating liquors as opposed to prohibition the liquor control is intended to protect the people from the evils of the open saloon and the crimes and debaucheries that follow in its wake. The state has prescribed the terms under which it will grant such license and likewise the terms under which it may be revoked. It may give and it may take away through its constituted authority, and when such authority acts within the law, the courts are powerless to interfere with his administrative orders, or question the wisdom or expediency of his administrative acts in issuing or revoking licenses. Such license is a privilege and not property within the meaning of the due process and contract clauses of the constitutions of the State and the nation, and in them licensees have no vested property rights. Floeck v. Bureau of Revenue, 44 N.M. 194, 100 P.2d 225; Ma-King Products Co. v. Blair, 271 U.S. 479, 46 S. Ct. 544, 70 L.Ed. 1046; Blum v. Ford, Com'r of Revenue, 194 Ark. 393, 107 S.W. 2d 340; Commonwealth v. Hildebrand, 139 Pa.Super. 304, 11 A.2d 688; Yacht Club Catering v. Bruckman, 276 N.Y. 44, 11 N. E.2d 345; Klipssh v. Indiana Alcoholic Beverage Comm., 215 Ind. 616, 21 N.E.2d 701; Texas Liquor Control Bd. v. Jones, Tex.Civ.App., 112 S.W.2d 227; Texas Liquor Control Bd. v. Floyd, Tex.Civ.App., 117 S.W.2d 530; Bradley v. Texas Liquor Control Bd., Tex.Civ.App., 108 S.W.2d 300; Shupee v. Railroad Comm. of Texas, 123 Tex. 521, 73 S.W.2d 505; 30 A.J. “Intoxicating Liquors,” §§ 147-149.

It is not our purpose to enter the controversy regarding the extent to which decisions of administrative bodies are subject to a judicial review. The courts are not in accord nor do the justices of some of the courts agree among themselves. See the opinions in Laisne v. State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457. The questions here are as to the authority or jurisdiction of the district court in statutory appeals from an order of the Chief of Division of Liquor Control, and whether such officer committed errors of law in his decision in this case.

[3] No provision is made on appeal for a trial de novo, and jury trials are specifically excluded. It is provided that the judge for good cause shown may receive additional evidence. It is obvious that he must review the evidence taken in the hearing before the Chief of Division. As the trial is not de novo the Chief of Division's decision on the facts must be reviewed as he heard it, and it could not be if additional evidence was authorized upon the question of whether appellee was the party in interest. It is our conclusion that the new evidence which may be admitted must be confined to questions of whether the Chief of Division acted fraudulently, capriciously or arbitrarily in rendering his decision. Ma-King Products Co. v. Blair, supra; Floeck v. Bureau of Revenue, supra; Texas Liquor Control Board v. Floyd, supra.

[4][5] The proceedings before the Chief of Division, while quasi judicial, were essentially administrative. The questions before the district court and here, are questions of law. They are, Whether he acted fraudulently, arbitrarily or capriciously in making his order, and, Whether such order was supported by substantial evidence, and,...