Cox v. Oklahoma Tax Com'n
| Decision Date | 16 April 1946 |
| Docket Number | 32304. |
| Citation | 168 P.2d 634,197 Okla. 12,1946 OK 124 |
| Parties | COX v. OKLAHOMA TAX COMMISSION. |
| Court | Oklahoma Supreme Court |
Appeal from Tax Commission.
J. M Cox applied to the Oklahoma Tax Commission for an off premises retail beer dealer's license. From an order of the Oklahoma Tax Commission refusing his application for the license, J. M. Cox appeals.
Order affirmed.
Syllabus by the Court.
An application for a retail dealer's beer license to operate a so-called 'package store' under 37 O.S.1941 § 162e(c) is properly denied under 37 O.S.1941 § 211, when it is shown that the 'package store' will be on the same premises as an existing dance hall.
Irvine E. Ungerman, of Tulsa, for plaintiff in error.
E. L Mitchell and W. F. Speakman, both of Oklahoma City, Attys for Tax Commission, for defendant in error.
J. M. Cox appeals from an order of the Oklahoma Tax Commission refusing his application for an 'off premises' retail beer dealer's license. The record consists entirely of his testimony and various written instruments and a map or plat of the premises and surrounding locality. The Commission gave no reason for the refusal of the application. Here, it is argued by Cox that he met all of the personal, business and statutory tests that are conditioned for the granting of such a license, and asserts that his application was denied arbitrarily and by erroneously judging his rights by the statutory conditions attached to the granting of a retail beer dealer's license to sell beer for consumption on the premises. Commission argues that Cox has no absolute right to have a license issued to him, but on the contrary the Commission has a discretion vested in it by statute and Cox can prevail on appeal only by showing an abuse of discretion.
In addition to this, Commission charges Cox with the adoption of a subterfuge to obtain this license. It points out that the locality where Cox intends to sell beer in the original package for consumption off of his premises has the following characteristics: (1) It is outside the limits of any town or city; (2) One man owns the entire tract of land; (3) At the north end of the tract there is a public dance hall; (4) Just south of the dance hall is a public swimming pool and a confectionery; (5) Just south of this is a small space of ground onto which Cox moved a small, one-room house about 20 X 20 (it almost completely covers the leased ground); (6) He proposes to sell beer at retail in the original package to the consumed off his premises; and (7) His business house is only 182 feet from the entrance to the dance hall. All of these structures are located 100 feet and more away from the street or road in their front, but all are served by one large, commonly used space for driveway and parking. Commission argues that given this set-up as a basis, that the licensing of the sale of beer under these conditions would be a violation of 37 O.S.1941 § 211 et seq., and other laws regulating the sale of beer. It points out that the purpose of the Legislature in enacting various statutes was to regulate the sale of beer at retail, especially with relation to dance halls, to minors and schools and churches, and if Cox can obtain a license to sell beer in package within 1,000 feet of this dance hall when he could not under like conditions obtain a license to sell beer at retail for consumption on his premises, the legislative will would be thwarted. Cox says, to counter this, that the Legislature has specified the terms and conditions that shall govern the issuance or refusal of a license for the various types of dealership authorized, and that each type of dealership is governed by the particular terms and conditions enumerated for it and not by what may apply to another.
We recognize the applicability of this argument to the facts. The restrictions against issuing a license to sell beer for consumption 'on premises', sec. 211 and sec. 212, are not expressly mentioned in 37 O.S.1941 § 162e(c) providing for the issuance of licenses to a 'retail dealer who sells such beverages in original packages and not for consumption on the premises.' Also, it is to be observed that the sale of beer 'in original packages and not for consumption on the premises' is not expressly mentioned or restricted by the provisions of the so-called 'Beer-Dance Hall' Law, H.B. 198, 1943 S.L. p. 108, 37 O.S.1941 §§ 211-218. This may have resulted from the realization that there is no practical method of preventing the taking of beer in the original package a considerable distance from the place of purchase to a dance hall.
On the other hand, the provisions of sec. 211, supra, may control by construction under the given facts. It reads: '* * * it shall be unlawful * * * to sell or otherwise dispense beverages (so defined) * * * on premises wherein public or private dancing is conducted or permitted, whether said dancing is under the same or different ownership and management. For the purpose of this Act the word 'premises' shall mean and include the real property or building, and any adjoining property connected thereto by any private passageway, on or in which such dancing is conducted or permitted.' It is significant that the sale or dispensing of beer is not modified or qualified by whether the beer is in or out of the original package. It is further significant that the Legislature adopted its own definition of 'premises.' Thus, beer may not be sold or dispensed on 'premises' (as defined) where public or private dancing is conducted or permitted, whether the beer is in or out of the original package, and consumption on or off the premises is not made a test or condition.
The legislative definition of premises is deliberately broadened for the purposes of the Act and in this respect conforms to the usual practice of the legislative bodies and courts in defining premises for similar purposes. See Parente v. State Board of Equalization of California, 1 Cal.App.2d 238, 36 P.2d 437; Treasure Island Catering Co. v. State Board of Equalization, 19 Cal.2d 181, 120 P.2d 1; Fenson v. State Liquor Authority, 152 Misc. 446, 273 N.Y.S. 751; Ratzell v. State, 27 Okl.Cr. 340, 228 P. 166; 33 Words & Phrases, Perm. Ed., 345. The first consideration of the facts herein to see where the definition of premises fits discloses that one man owns this entire block. The next is that all of the north boundary, and the west boundary to the point where it adjoined Cox's lot or building, is under one permanently affixed wire fence. Also, all of the activities carried on in the block area use in common the relatively large open space between them and the street on the east for parking space for those attending any or all of the facilties. We think it constitutes premises within the meaning of the statute, if connected by a 'private passageway.'
'Private passageway' or 'private way' as defined in 33 Words & Phrases, Perm. Ed., 726, has in common some aspects that govern here. The word 'private' connotes privately owned as differentiated from publicly owned, or dedicated to public use voluntarily or by eminent domain. It likewise implies a way of convenience for those engaged in common or related activities in a given area. We think the close proximity of the proposed package store and the dance hall, and the access from one to the other over this commonly used space, without necessity of resort to the public streets or roads, and the private ownership of the land justifies the designation of a 'private passageway' within the meaning of the statute.
Therefore, we think the license was properly refused under sec. 211, supra.
The order appealed from is affirmed.
J. M. Cox, a licensee for the sale of non-intoxicating beverages, appeals from an order of the Oklahoma Tax Commission denying him a license to sell beer.
The license to sell beer, by the majority opinion, is denied, not because beer may be lawfully sold in Oklahoma, but by reason of the relation of a statute as to the sale of non-intoxicating beverages within 1,000 feet of a place where dancing is permitted, 37 O.S.Supp.1945, § 211, and its connection with 37 O.S.1941 § 162e(c), applicable to the payment of a license tax and the issuance of a permit to sell non-intoxicating beverages in original packages and not for consumption on the premises.
Thus, for the first time within the State of Oklahoma, the Supreme Court assumes, without deciding, that the sale of beer within Oklahoma is legal.
Appellant contends that denial of the permit is arbitrary; that the order of the Tax Commission is the result of the exercise of a discretion not by law vested; that the order is contrary and in violation of law.
Appellant's one assignment of error is predicated upon an alleged right 'to sell 3.2 beer' in original packages. Appellant has attached to his application for permit, a lease to real estate acquired by him as a location for the proposed sale of beer. He provides himself with a malt beverage stamp. Eleven times in testimony appellant made reference to his sale of beer. The majority opinion assumes without deciding, that beer may be legally sold in Oklahoma. This, I shall controvert. In the meantime, I shall attempt to show misconstruction and misapplication of the statutes relating to the issuance of permits to sell in original packages and not for consumption on the premises, non-intoxicating beverages (exclusive of beer), 37 O.S.1941 § 162e(e), and to establish that H.B. 198, S.L.1943, p. 108, 37 O.S.Supp.1945, § 211, relates only to the sale of non-intoxicating beverages (exclusive of beer)...
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