Johnstone v. Richardson
| Court | California Court of Appeals |
| Writing for the Court | Edmund G. Brown, Atty. Gen.; PETERS |
| Citation | 229 P.2d 9,103 Cal.App.2d 41 |
| Parties | JOHNSTONE v. RICHARDSON et al. Civ. 14589. |
| Decision Date | 22 March 1951 |
Page 9
v.
RICHARDSON et al.
Bruee Johnstone, in propria persona, R. J. Hecht, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., J. Albert Hutchinson, Deputy Atty. Gen., for respondent.
PETERS, Presiding Justice.
Bruce Johnstone, as a resident of Inverness, Marin County, and as accuser or complainant, for several years has sought, by various proceedings, to compel the State Board of Equalization to revoke the on-sale distilled spirits license for seasonal business issued to May Richardson [103 Cal.App.2d 42] who operates the Inverness Lodge. The petitioner first pursued his remedies before the State Board, and, when it denied him relief, sought mandate to compel the board to cancel the license. Although the petition for mandate presented several issues involving the validity of the issued license, by stipulation of the parties it was agreed that, in the first instance, the issues were to be restricted in that proceeding to an interpretation of Article XX, section 22 of the Constitution, and of section 38f of the Alcoholic Beverage Control Act (Deering's Gen.Laws, Act 3796), and to a determination as to whether those provisions, as applied to the facts, prohibited the issuance of the questioned license, leaving the other issues to be tried later. It was further stipulated that May Richardson was fully qualified for a seasonal on-sale general license except as she might be affected by section 38f. The trial court denied the application for the writ. This court affirmed, holding that section 38f did not apply to
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seasonal licenses. Johnstone v. State Board of Equalization, 95 Cal.App.2d 527, 213 P.2d 429.On the same day that the Supreme Court denied a petition for hearing in that case (March 6, 1950) Johnstone filed a request to file a supplement and amendment to his original petition for mandate. The trial court, without a trial, denied the request and denied the petition for the writ insofar as it involved issues not passed on in the first proceeding, and again Johnstone appeals. This piecemeal trying of cases by limiting, by means of a stipulation, the issue to be first tried, and, upon failure to secure the desired relief, trying other issues that could and should have been tried in the first proceeding, is not to be commended. All of the issues involved in this and the prior proceeding should have been tried in one action. However, in the interests of justice we will assume, for the purposes of this appeal, that the holding in the prior opinion is not res judicata of the issues now involved.
The original petition which appellant unsuccessfully sought to amend alleges that appellant is a resident of Inverness, Marin County; that during the school vacation period the population of that town and area is greatly increased by vacationists; that May Richardson operates the Inverness Lodge; that during the entire year food and lodging are furnished at the Lodge; that liquor is sold on the premises under license each year for the nine-month period commencing April 1st and terminating December 31st; that the business[103 Cal.App.2d 43] of the Lodge is not seasonal within the provisions of the Alcoholic Beverage Control Act; that an on-sale distilled spirits license for a seasonal business can be issued properly only to a business that is carried on at specific seasons or periods of the year, and which, from its very nature, cannot be continuous; that May Richardson cannot qualify in this classification. It is further alleged that since 1947 the board has issued a seasonal license to May Richardson upon her representation that she runs a seasonal business, which representation it is claimed is false and was known by the applicant and the board to be false. It is also averred that on April 1, 1949, appellant filed a protest with the board, protesting the renewal of the license; that the board refused to consider the protest; that on April 20, 1949, appellant filed an accusation or complaint requesting the board to cancel the license on the ground that the business involved was not a seasonal one; that the board replied that there was no requirement in the law that a licensee must actually close his premises during any portion of the year; that the legal requirement of a seasonal business is that the premises be located in a seasonal area, and that for one quarter of the year the licensee shall not sell alcoholic beverages; that Inverness Lodge is in such a seasonal area and does not sell liquor in the first quarter of the year. The petition then alleges that in thus defining a seasonal business the board is attempting to usurp the functions of the legislature by creating a new type of license, that is, one that is issued to a licensee who does an annual business in a seasonal area; that such a license is not recognized by the law; that the board, in issuing such a license, violated the law. The petition further alleges that the appellant requested the board to serve the complaint on the licensee, but the board advised him that it had been advised by the attorney general that no further action need be taken by the board, and that no hearing would be had. The supplement to the petition avers that the license was issued to May Richardson in the summer of 1947 over the protests of certain residents of Inverness even though a hearing officer of the board had recommended a denial of the license on the ground that the applicant does not conduct a seasonal business; that since 1947...
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Halbert's Lumber, Inc. v. Lucky Stores, Inc., No. G009097
...For so much as what? For as much as what may be? As far as what goes? When read in context (see Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d 9 [words of a statute "must be construed in context"] ), the words "pro tanto" take their meaning Page 307 from the second sentence ......
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Tripp v. Swoap, S.F. 23423
...Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 149, 514 P.2d 1224, 1229, quoting from Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d Where as here two codes are to be construed, they 'must be regarded as blending into each other and forming a single statute.......
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Sunset Amusement Co. v. Board of Police Commissioners
...had changed in the meantime. We conclude that the question was not rendered moot by the passage of time. (See Johnstone v. Richardson, 103 Cal.App.2d 41, 48, 229 P.2d Petitioners next contend that rather than deny their operating permit outright, the Board should have granted a Conditional ......
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Viva! Intern. Voice for Animals v. Adidas, No. A106960.
...v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224, quoting Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d Section 653o is plain and unambiguous. The statute is an outright ban on the importing of the bodies, body parts, or products of......
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Halbert's Lumber, Inc. v. Lucky Stores, Inc., G009097
...For so much as what? For as much as what may be? As far as what goes? When read in context (see Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d 9 [words of a statute "must be construed in context"] ), the words "pro tanto" take their meaning Page 307 from the second sentence ......
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Tripp v. Swoap, S.F. 23423
...Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 149, 514 P.2d 1224, 1229, quoting from Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d Where as here two codes are to be construed, they 'must be regarded as blending into each other and forming a single statute.......
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Sunset Amusement Co. v. Board of Police Commissioners
...had changed in the meantime. We conclude that the question was not rendered moot by the passage of time. (See Johnstone v. Richardson, 103 Cal.App.2d 41, 48, 229 P.2d Petitioners next contend that rather than deny their operating permit outright, the Board should have granted a Conditional ......
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Viva! Intern. Voice for Animals v. Adidas, A106960.
...v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224, quoting Johnstone v. Richardson (1951) 103 Cal.App.2d 41, 46, 229 P.2d Section 653o is plain and unambiguous. The statute is an outright ban on the importing of the bodies, body parts, or products of......