Deckert v. Levy

• Decision Date: 25 June 1948
• Citation: 308 Ky. 67,213 S.W.2d 431
• Parties: DECKERT et al. v. LEVY.
• Court: Kentucky Court of Appeals

213 S.W.2d 431

308 Ky. 67

DECKERT et al. v. LEVY.

Court of Appeals of Kentucky

June 25, 1948

Appeal from Circuit Court, Campbell County; Ray L. Murphy, Judge.

Mandamus proceeding by Nathan Levy against James E. Deckert and others, Board of Commissioners of the City of Newport, to compel defendants to issue to plaintiff a city retail beer license. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment reversed.

Davies & Hirachfeld, of Newport, for appellants.

Morris Weintraub, of Newport, for appellee.

STANLEY Commissioner.

The question in this case is the authority of a city of the second class to limit by ordinance the number of retail beer licenses in the absence of regulations of the State Alcoholic Beverage Control Board to that effect, and where the office of City Alcoholic Beverage Control Administrator has not been created.

By an ordinance of November 15, 1946, the City of Newport placed a limit of 110 on the number of retail beer licenses. That number having been reached, the application of Nathan Levy for such a license was denied by the Board of Commissioners. A short time before, on March 30, 1948, the administrator of the malt beverage unit of the Alcoholic Beverage Control Board had issued Levy a license of that character. Ky.Rev.Stats. 243.040. Levy used and obtained a writ of mandamus against the commissioners to issue him a city license upon the ground that a city can not limit the number.

The controlling features of this case are: (1) The State Board has never by regulations, general or specific, fixed a limit or quota upon the number of retail malt beverage licenses for Newport; and (2) the office of local or city administrator has never been created by Newport. These conditions distinguish the case from O'Brien v. Department of Alcoholic Beverage Control, 306 Ky. 238, 206 S.W.2d 941. And the record is silent as to any qualification or activity of the County Judge as Liquor Administrator or the appointment of a special officer and as to any regulation of the Board for Campbell County.

We dispose of appellant's contention that the court had no jurisdiction to entertain this suit because the appellee was required first to appeal to the State Board. In the absence of a local administrator and action by such officer, the remedy of an aggrieved person is directly through the courts. Dunn v. Central City, 285 Ky. 482, 148 S.W.2d 347.

The State has plenary police power to regulate and control traffic in intoxicating liquor, subject only to constitutional restrictions. There are none other than the bar of certain special legislation, and the provision for local option elections. Sections 59 and 61. Board of Trustees of Town of Newcastle v. Scott, 125 Ky. 545, 101 S.W. 944, 30 K.L.R. 894; Beacon Liquors v Martin, 279 Ky. 468, 131 S.W.2d 446; Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163 84 L.Ed. 128, affirming Ziffrin, Inc. v. Martin D.C., 24 F.Supp. 924.

The Commonwealth has assumed control where local prohibition does not prevail in the enactment of chapters 241 and 243, KRS. The General Assembly has created a state board and conferred extraordinary powers on it and its administrators. In relation to the present issue, the statutes prescribe the duties of the Board to be: (1) To adopt reasonable regulations governing procedure and administration in the supervision and control; but they need not be uniform in application and may vary in accordance with reasonable classification, and (2) to limit in its sound discretion the number of licenses to be issued (a) in the state, or (b) any political subdivision. It may restrict locations by these regulations and it may by regulation make division and subdivision of the state or any political subdivision into districts and make different regulations for them. The constitutional validity and the construction of certain provisions of the statutes have been declared in Keller v. Ky. Alcoholic Beverage Control Board, 279 Ky. 272 130 S.W.2d 821; Ky. Alcoholic Beverage Control Board v. Klein, 301 Ky. 757, 192 S.W.2d 735; and O'Brien v. Dept. of Alcoholic Beverage Control, supra.

The power of the state to control and regulate the traffic in intoxicating liquor may be delegated or conferred by the Legislature upon municipalities, either in whole or in part. Even in the absence of a specific delegation, authority exists as an incident to the general powers of a city and its exercise is justified by the general welfare provisions of municipal charters, particularly in relation to the issuance of licenses and limitation on the number. Schwierman v. Town of Highland Park, 130 Ky. 537, 113 S.W. 507; Christian Moerlein Brewing Co. v. Roser, 169 Ky. 198, 183 S.W. 479.

It is usual for the state to share responsibility with its subordinate units of government, particularly with cities and towns, by extending concurrent or coordinate powers. Where there is a conflict in the authority or in its exercise, the state's action has supremacy. This is recognized in the Klein and O'Brien cases above cited.

General authority of cities of the second class to regulate intoxicating liquor may be found in the provision of their charters granting power to pass and enforce ordinances 'not inconsistent with the law, as are expedient in maintaining the peace, good government, health and welfare of the city.' KRS 84.150. Also, power to license...