Howard v. Willocks

• Decision Date: 30 June 1975
• Citation: 525 S.W.2d 132
• Parties: Larry T. HOWARD and Gene Roberts, Appellants, v. Teddy L. WILLOCKS, Chairman of the Jefferson County Beer Board, et al., Appellees.
• Court: Tennessee Supreme Court

Page 132

525 S.W.2d 132

Larry T. HOWARD and Gene Roberts, Appellants, v. Teddy L. WILLOCKS, Chairman of the Jefferson County Beer Board, et al., Appellees.

Supreme Court of Tennessee.

June 30, 1975.

C. S. Rainwater, Jr., Rainwater & Rainwater, Dandridge, for appellants.

A. Benjamin Strand, Jr., Strand & Goddard, Dandridge, for appellees.

OPINION

HENRY, Justice.

This appeal, from the decision of the Chancery Court at Jefferson City, upholding the action of the Jefferson County Beer Board, arises under the laws relating to the sale of beer and light alcoholic beverages as incorporated in Chapter 2, Title 57, Tennessee Code Annotated.

We are confronted with two first impression and determinative issues, viz.:

1. The power of a Tennessee County to limit the number of retail beer outlets within its confines.

2. The transferability of a beer permit from one designated location to another.

On May 22, 1972 the Jefferson County Beer Board issued appellants a permit to engage in the retail sale of beer in a rural area in Jefferson County. As a result of circumstances over which they had no control, it became necessary for appellants to vacate the premises in which they conducted their business as of January 15, 1975. As a result of this required termination, one of the petitioners purchased a tract of land, also in a rural area of Jefferson County, with the intent that appellants would move their business to that location.

The record reflects that on July 10, 1972, the Quarterly Court of Jefferson County adopted a resolution providing, in substance, that the total number of outstanding permits for the sale of beer at retail in Jefferson County, would be limited to a maximum of ten (10) at any given time. The record further reflects that at all times pertinent to this controversy there were a total of ten (10) outstanding permits, including that held by appellants. It further reflects that there were applications for permits on file. The result of this resolution, the number of permits outstanding, and the existence of prior permit applications was that appellants, instead of applying for a permit, elected to make application for a transfer of the existing permit.

The record further reflects that an application for a permit would have been futile.

A copy of the application for a transfer of the beer permit from the former location to the new location appears in the record and it meets all the statutory (Sec. 57--205 T.C.A.) requirements for the issuance of permits.

A hearing was held on appellants' application and, according to the minutes of the Jefferson County Beer Board meeting on January 13, 1975, the application was summarily denied, with no reasons being assigned.

Appellants promptly filed petition for the writ of certiorari in the Chancery Court at Jefferson City. The Beer Board responded with a motion for summary judgment, insisting that there was no authority for the transfer of a beer permit, with the further and alternative insistence that review was by common law writ of certiorari instead of the statutory writ.

The Chancellor sustained this motion, holding that 'A county beer committee is without authority to hear and/or to grant a 'transfer' of a validly issued beer permit from one designated location to another.' Appellants have perfected their appeal.

I.

A proper analysis and determination of the issues presented in this controversy necessarily involves a consideration of the general powers of Tennessee counties and their specific power and authority under the beer laws.

An excellent statement of the general nature of Tennessee counties will be found in Weakley County v. Carney, 14 Tenn.App. 688, 698 (1932), as follows:

Counties are not created for the purpose of general government, and because of this fact it has been said that they are corporations of low character, and cannot discharge corporate duties in the broad sense in which municipalities can discharge them. In Burnett v. Maloney, 97 Tenn. 697, 37 S.W. 689, 34 L.R.A. 541, it was said in substance that counties have their creation in the Constitution, and the statutes confer upon them all the duties which they possess, prescribe all the duties they owe and impose all the liabilities to which they are subject. Considered with respect to their powers, duties, liabilities, they stand low down in the scale of corporate existence. They are ranked as quasi corporations. They possess no powers except such as are conferred expressly or by necessary implication, and those are strictly construed and must be strictly pursued. They are distinguishable from private corporations aggregate, and from municipal corporations proper, which are more amply endowed with corporate life and function, because such corporations are intended to exercise the general functions of government over the inhabitants within the corporate limits.

In Wright v. State, 171 Tenn. 628, 106 S.W.2d 866 (1937), a landmark case decided under our beer laws, the Court had under consideration a resolution adopted by the Quarterly Court of Lawrence County, in substance, prohibiting the sale of beer upon any premises wherein dancing is permitted; prohibiting the sale of beer after 10:00 p.m.; and prohibiting sales within one thousand feet of any building where a public school or religious service is held. The Court noted its prior decisions holding that the powers entrusted to county courts, emanate from the Legislature and, 'hence when a power claimed for them is not conferred it must be held not to exist'. The Court takes note of the vast distinction of powers conferred by the Legislature upon municipal corporation as opposed to those conferred upon counties, in these words:

There appears to be express authority of cities and towns to pass proper ordinances governing the issuance and revocation of licenses. There is express provision for cities and towns to impose additional restrictions, fixing zones and territories, providing hours of opening and closing, and such other rules and regulations as will promote public health, morals, and safety as they may be ordinance provide. If it were intended that the county court should exercise like authority and to make ordinances or resolutions beyond the provisions of the legislative act, this authority, we think, would not have been expressly given to municipal corporations without being given the county court. The language of the statute, granting such authority only to municipal corporations, seems upon its face to exclude county courts from making any regulation beyond the provisions of the statute. 106 S.W.2d at 870.

Again the Court said:

(W)e find no authority for a county court to set up a law unto itself, applicable alone to that county, or to extend the law as defined by the Statute. Id. at 871.

In Huffer v. State, 178 Tenn. 644, 162 S.W.2d 381 (1942) this Court held that the beer act 'seems upon its face to exclude county courts from making any regulations beyond the provisions of the statute', and struck down a resolution of the Quarterly Court of Clay County providing that no beer permit should be issued for a longer period than one year.

In Perry v. Sevier County Beer Board, 181 Tenn. 696, 184 S.W.2d 32 (1944), the Court, relying upon Wright, supra, and Huffer, supra, held that a county beer commission had no right to make a regulation prohibiting the sale of beer after 7:00 p.m.

This Court has repeatedly held that counties have no authority other than that expressly given by statute or necessarily implied from the provisions of such statute. Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955).

Reference to the regulation of the sale of beer as incorporated in Chapter 2 of Title 57, Tennessee Code Annotated in general and to Sections 57--205 relating to county regulation and 57--208 relating to municipal regulation will indicate the very pronounced difference between the authority possessed by cities and counties. Not the least distinction is that Section 57--208 provides in part that:

(C)ities and towns may impose additional restrictions, fixing zones and territories and providing hours of opening and closing and such other rules and regulations as will promote public...