Johnstone v. State Board of Equalization

• Citation: 95 Cal.App.2d 527,213 P.2d 429
• Court: California Court of Appeals
• Decision Date: 11 January 1950
• Parties: JOHNSTONE v. STATE BOARD OF EQUALIZATION et al. Civ. 14164.

Page 429

213 P.2d 429

95 Cal.App.2d 527

JOHNSTONE v. STATE BOARD OF EQUALIZATION et al.

Civ. 14164.

District Court of Appeal, First District, Division 1, California.

Jan. 11, 1950.

Hearing Denied March 6, 1950.

Bruce Johnstone, Inverness, appellant, in propria persona.

R.J. Hecht, San Francisco, for appellant.

Fred N. Howser, Attorney General, J. Albert Hutchinson, Deputy Attorney General, for respondent State Board of Equalization.

PETERS, Presiding Justice.

In August of 1947, respondent May Richardson, over the protests of petitioner, Bruce Johnstone, who is a resident of Inverness, Marin County, was issued a seasonal liquor license permitting her to sell hard liquor at Inverness Lodge. After pursuing, unsuccessfully, his remedies before the State Board of Equalization, petitioner sought a writ of mandate from the Superior Court to compel the Board to cancel the license on the ground that the license had been illegally issued. From a judgment denying his petition, Johnstone appeals.

Although several issues were presented by the petition and return thereto, this appeal has been taken on the clerk's transcript and a stipulation between the parties. The stipulation provides:

"1. The issues in the above-entitled cause shall be restricted to an interpretation and application of the Alcoholic Beverage Control Act, Stats. of 1935, p. 1123, Deering's General Laws, Act 3796, and of Article XX, Section 22 of the Constitution of the State of California, to the issuance of the seasonal on-sale general license, as referred to in said Act, by the Board to said May Richardson, and more particularly to the issue whether the issuance of said license to said May Richardson is affected or controlled by the provisions of section 38f of said Act;

"2. That for the purposes of determining the issues referred to and defined in Paragraph numbered '1' hereof, the Court may assume that said May Richardson was at all times herein mentioned fully qualified for a seasonal on-sale general license, unless the issuance thereof to said May Richardson was or is affected by said Section 38f of said Act and, except for the effect, if any, of said Section 38f of said Act, said license was at all times herein mentioned duly and lawfully issued by the Board to said May Richardson;

"3. That the Court may assume that, for the purposes of Section 38f of said Act, the number of on-sale general licenses, not including seasonal licenses, issued and in effect in the County of Marin at all times herein mentioned, exceeded in number one per thousand of population of said County."

As limited by the stipulation, the sole question presented on this appeal is whether in computing the number of licenses permitted by section 38f of the Act--one general on-sale license per 1,000 inhabitants--seasonal as well as general licenses should be included. A reading of the pertinent statutes and rules of the Board demonstrates that the answer to this question must be that seasonal licenses never have been used in making such computation, and under the statute and rules should not be so used.

The Constitution, Art. XX, § 22, provides in part: "The State Board of Equalization shall have the exclusive power to license the *** sale of intoxicating liquors in this State, *** and shall have the power, in its discretion, to deny or revoke any specific liquor license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals."

The Alcoholic Beverage Control Act, Stats. of 1935, p. 1123, Chap. 330, as amended by Stats. of 1945, Stats. of 1945, p. 2615, Chap. 1401, 2 Deering's General Laws, Act 3796, contains the following pertinent provisions: Sec. 1. "This act shall be deemed an exercise of the police powers of the State, for the protection of the safety, welfare, health, peace and morals of the people of the State; *** and to promote temperance in the use and consumption of alcoholic beverages; and it is hereby declared that the subject matter of this act involves in the highest degree the economic, social and moral well-being and the safety of the State and of all its people; and all provisions of this act shall be liberally construed for the accomplishments of these purposes."

Section 2(u) provides: " 'Retailer's on-sale license' means and includes on-sale beer licenses, on-sale beer and wine licenses, on-sale general licenses, and on-sale distilled spirits licenses for seasonal businesses."

Section 38f is the section which was added in 1945, and which, for the first time, provided a statutory limitation upon the number of premises that can be licensed in any area. The section reads in part as follows:

Sec. 38f. "Limitation upon number of premises licensed."

(Par. 1.) "It is hereby determined that the public welfare and morals require that there be a limitation on the number of premises licensed for the sale of distilled spirits."

(Par. 2.) "The number of premises for which an on-sale general license is issued shall be limited to one of such premises for each 1,000, or fraction thereof, inhabitants of the county in which the premises are situated, provided that no additional on-sale general licenses, other than a renewal or transfer or as permitted hereinafter in this section, shall be issued in any county where the number of all premises for which on-sale licenses, other than on-sale beer licenses, are issued shall be more than one of such premises for each 1,000 or fraction thereof, inhabitants of such county, ***."

(Par. 4.) "The board shall have power to make all rules and regulations consistent with the provisions of Section 22 of Article XX of the Constitution of this State, or this act, necessary to carry into effect the provisions of this section, and to restrict the issuance of alcoholic beverage licenses, including seasonal licenses, *** to such number in any county as the board shall determine shall be in the interest of public welfare and morals, convenience or necessity."

(Par. 5.) "Whenever it shall be made to appear to the board by satisfactory evidence that the population in any county shall have increased by more than 1,000 or multiples of 1,000 inhabitants *** and it shall appear to the board that by reason thereof, the inhabitants of such county are unjustly and unfairly discriminated against, and provided that the total number of licenses in such county do not then exceed the maximum specified in the second paragraph of this section, the board shall have power to issue not to exceed one on-sale...