Crews v. Undercofler, 23502.
| Decision Date | 24 January 1967 |
| Docket Number | No. 23502.,23502. |
| Citation | 371 F.2d 534 |
| Parties | Albert CREWS, Appellant, v. Hiram UNDERCOFLER, Commissioner of Revenue of the State of Georgia, Appellee. Hiram UNDERCOFLER, Commissioner of Revenue of the State of Georgia, Appellant, v. Albert CREWS, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wesley R. Asinof, Atlanta, Ga., for appellant.
William L. Harper, Asst. Atty. Gen., Atlanta, Ga., for appellee.
Before BROWN, BELL and DYER, Circuit Judges.
Appellant sought declaratory and injunctive relief in the District Court against the Georgia Revenue Commissioner because the Commissioner denied him a retail liquor dealer's license. His suit, premised on the civil rights statutes, claims a deprivation of due process and equal protection of the laws within the guaranty of the Fourteenth Amendment. 28 U.S.C.A. § 1343; 42 U.S.C.A. § 1983.
The sale of liquor is authorized in Georgia on a local option basis with the option being vested in the registered voters of each county. Ga.Laws 1937-1938, Ex.Sess., p. 103 et seq., Ga.Code § 58-1001 et seq. The sale of liquor was authorized in Glynn County in 1938. Under the Georgia statutes an applicant must obtain two licenses in order to sell alcoholic beverages; one locally, and one from the State Revenue Commissioner. The local license must be obtained first. It is to be issued by the unit of government in which the business is to be operated, i. e., the municipality within a county if the business is to be within the corporate limits of a municipality, or the county if the business is to be located outside the limits of a municipality. Ga.Laws, supra, p. 103, 112, Ga.Code § 58-1031. Here the operation was to be on Jekyll Island which is outside a municipality but within Glynn County.
Appellant obtained a license from Glynn County for the operation on Jekyll Island. The license was issued under standards promulgated in 1938 after the county legalized the sale of alcoholic beverages. The Revenue Commissioner refused to grant the state license on two grounds. One, the authority to issue the local license was vested in the Jekyll Island State Park Authority and not Glynn County. Hence, appellant was without the necessary local license. Two, the sale of alcoholic beverages on Jekyll Island would violate the policy of the state not to allow such sales in state parks.
The facts are that Jekyll Island, an island off the coast of Georgia adjacent to and a part of Glynn County, was acquired by the State Parks Department in 1945. It was transferred in 1950 by a ninety nine year lease to the Jekyll Island State Park Authority, an instrumentality of the State of Georgia. Georgia Laws 1950, p. 152 et seq., Ga.Code § 43-608a. Although a part of Glynn County for voting and court purposes, the General Assembly vested all police powers over the island in the Authority subject to being delegated to the state or Glynn County.1 Properties on Jekyll are leased by the Authority and appellant is a lessee of hotel properties.
The Act legalizing the sale of liquor in Georgia, supra, recognizes that licensing is a part of the local police power. Georgia Code § 58-1028. The reference is to county and municipal police power and this ties in with the provision of the Act which requires a local license as a condition precedent to the issuance of a license by the state. Code § 58-1031, supra.
The question before the Commissioner turned on whether the police power over liquor licensing is vested in the Jekyll Island Authority or in Glynn County. There was no claim that any police power whatever had been delegated to Glynn County by the Authority. The police power over Jekyll Island was in the state by virtue of...
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...of damages at least where constitutional rights are violated. See e. g., Crews v. Undercofler, 249 F.Supp. 13 (D.Ga.1966), aff'd 371 F.2d 534 (5th Cir. 1967); Harkless v. Sweeney Ind. School District, 427 F.2d 319 (5th Cir. 1970); and see cases in note 380 in the annotation to 42 U.S.C.A. §......
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...which an applicant can intelligently seek to qualify for a license * * *." Hornsby v. Allen, supra, 326 F.2d at 612. See Crews v. Undercofler, 5 Cir., 1967, 371 F.2d 534. And this is so even if, because of draftsmanship, this leaves open much room for interpretation, including misinterpreta......
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...must set forth clear standards giving adequate notice, and must afford procedural due process in their application. Crews v. Undercofler, 371 F.2d 534, 535 (5th Cir. 1967). We have explicitly refused to read Hornsby as "holding that the Federal Courts sit as a super liquor board." Atlanta B......