Hardin v. Cassinelli
| Decision Date | 07 December 1942 |
| Docket Number | 4-6890 |
| Citation | 166 S.W.2d 258,204 Ark. 1016 |
| Parties | HARDIN, COMMISSIONER OF REVENUES v. CASSINELLI |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; reversed.
Judgment reversed and cause dismissed.
Elsijane Trimble, for appellant.
Glenn G. Zimmerman, E. B. Dillon and Philip McNemer, for appellee.
This is an appeal by the Commissioner of Revenues from a judgment of the Pulaski Circuit Court, Second Division, rendered on April 9, 1942, directing said Commissioner to issue a liquor permit to appellee, permitting him to sell liquor at 106 West Markham Street in the city of Little Rock.
In his petition for mandamus appellee alleged that on December 11, 1941, he filed the proper petition for a permit to sell liquor at that address, which is in a concentrated trade area and within a territory in which there is no law or regulation in effect prohibiting the issuance of the liquor license upon his application. He further alleged that he was qualified in every respect to engage in the liquor business and had tendered the proper sum of money for a permit; that his application was denied on January 30, 1942, and "that the action of the Commissioner in refusing the application is arbitrary, discriminatory, without legal authority and in clear abuse of his discretion."
Appellant filed a response, stating his reasons for denying the permit, and alleged that § 1 (a), art. III of Act 108 of the Acts of 1935, now § 14106 of Pope's Digest, authorized him to exercise his discretion in determining whether public convenience and advantage will be promoted by issuing or refusing to issue permits for the sale of liquor, and that he was further given discretion in determining the number of permits to be granted, the location thereof and the person or persons to whom such permits should be issued.
Section 14106 of Pope's Digest, herein referred to, reads as follows:
Appellant further alleged that under Subsection (c), § 3 of art. III of Act 108 of 1935, now § 14104 of Pope's Digest, he was authorized to adopt rules and regulations not inconsistent with the provisions of said act. Section 14104 of Pope's Digest, among other things, provides as follows:
He further alleged on December 8, 1941, he, as Commissioner of Revenues, promulgated Supplemental Regulation No. 23, superseding any and all other regulations theretofore promulgated pertaining to the issuance of permits and licenses to retail liquor dealers, §§ 2 and 4 of which read as follows:
The response further stated that the application of the petitioner for a permit to engage in the retail sale of liquor at 106 West Markham Street was denied for the reason that the premises at which request was made for permission to sell liquor were located within 100 yards of other premises where the sale of liquor was permitted, and under the provisions of § 2 of Supplemental Regulation No. 23 the permit could not be issued under such circumstances except where the Commissioner of Revenues determined that the public convenience and advantage would be promoted by reason of the issuance of such permit within such area because of concentration of liquor trade therein and the lack of sufficient liquor stores to supply the demand therein; that he had determined that no such facts existed within such area so as to permit him to make an exception from the rule prohibiting the issuance of permits for the sale of liquor from any premises located within 100 yards of other premises where the sale of liquor was permitted; that the premises at which retail sales of liquor were to be made by the petitioner if his application had been granted, in addition to being located within 100 yards of two other liquor stores, are within an area and vicinity wherein are located nine other liquor stores within a distance of a block or a block and a half of the premises where the petitioner intended to sell liquor under the permit he was seeking, and that the application was denied for such reason, which was in accordance with the provisions of § 4 of Supplemental Regulation No. 23.
It was further alleged that appellee sought to control the discretion granted to the Commissioner of Revenues by Act 108 of the Acts of 1935, and that such discretion was not subject to control by the courts.
The circuit court sustained the petition for a writ of mandamus and ordered a permit issued to petitioner herein, from which judgment the Commissioner of Revenues has appealed.
The evidence did...
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