King v. Harris, 20326

• Decision Date: 15 December 1965
• Docket Number: No. 20326,No. 2,20326,2
• Citation: 140 Ind.App. 9,212 N.E.2d 387
• Parties: Frank KING, Appellant, v. Joe A. HARRIS, as Chairman of the Indiana Alcoholic Beverage Commission, Robert Halliday, as a Member of the Indiana Alcoholic Beverage Commission, Wesley Malone, as a Member of the Indiana Alcoholic Beverage Commission, Barnett W. Breedlove, as a Member of the Indiana Alcoholic Beverage Commission, Appellees
• Court: Indiana Appellate Court

Page 387

212 N.E.2d 387

140 Ind.App. 9

Frank KING, Appellant, v. Joe A. HARRIS, as Chairman of the Indiana Alcoholic Beverage

Commission, Robert Halliday, as a Member of the Indiana

Alcoholic Beverage Commission, Wesley Malone, as a Member of

the Indiana Alcoholic Beverage Commission, Barnett W.

Breedlove, as a Member of the Indiana Alcoholic Beverage

Commission, Appellees.

No. 20326.

Appellate Court of Indiana, Division No. 2.

Dec. 15, 1965.

Rehearing Denied Jan. 17, 1966.

[140 INDAPP 10] Joseph F. Quill, John G. McNutt, Joseph Sullivan, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Frank Maley, Deputy Atty. Gen., for appellees.

MOTE, Judge.

This is an appeal from the judgment of the Hamilton Circuit Court, dismissing Legal Paragraph I of appellant's complaint seeking a declaratory judgment in an action brought by appellant, Frank King, against the members of the Indiana Alcoholic Beverage Commission.

The appellant commenced this action in Superior Court No. 4 of Marion County by filing a complaint which, in part, sought a declaration that the prohibition against the sale of iced or cooled malt beverages by holders of beer dealers' permits, as provided in the Acts of 1935, ch. 226, Sec. 11, p. 1056; [140 INDAPP 11] 1941, ch. 237, Sec. 4, p. 952, being Sec. 12-510, Burns' 1956 Replacement, was of present force and effect with regard to package liquor store operators who by the provisions of Sub-section C of the Acts of 1953, ch. 56, Sec. 1, p. 179, being Sec. 12-533, Burns' 1956 Replacement, are permitted to sell alcoholic malt beverages 'upon application and receipt of a beer dealer's permit, as prescribed by law.' In pertinent part, the above statutes are as follows:

Burns' Section 12-510 (Acts 1941, ch. 237 Sec. 4, p. 952):

'* * * In addition to all provisions of law relating to the holder of a beer dealer's permit, it shall be unlawful for such permit holder to offer or display for sale, or sell, barter, exchange or give away any bottle, can, container or package of alcoholic malt beverages which was iced or cooled by such permit holder before or at the time of such sale, exchange or gift.

'* * *

'Said dealer's permits may be issued to the proprietor of any drug store, grocery, store, or confectionery, or to the proprietor of any store in good repute, in the judgment of the commission, which deals in such other merchandise that the sale of alcoholic malt beverages is not incompatible therewith, or likely to contravene, in the judgment of the commission, the policies and purposes of this act. * * *'

Burns' Section 12-533 (Acts 1953, ch. 56, Sec. 1, p. 179:

'12-533. Articles which may be sold by package liquor store dealers.--In addition to the commodities which a package liquor store may sell under existing law, package liquor store dealers shall be permitted to sell the following:

A. Bar supplies used in the preparation for consumption of alcoholic beverages and in their consumption.

B. Tobacco Products.

C. Alcoholic malt beverages upon application and receipt of a beer dealer's permit, as prescribed by law, including the payment of the sum of two hundred dollars [$200] in cash, if such dealer's application applies to premises situated within a city of the first or second class, or one hundred fifty [$150] if such [140 INDAPP 12] application applies to premises situated within an incorporated or unincorporated town or city having a population of less than thirty-five thousand [35,000] according to the last preceding decennial census of the United States; and such alcoholic malt beverages shall be, in bottles only, or in such containers only as specified by the alcoholic beverage commission, and no sale thereof shall be made by the drink, or for consumption upon the premises described in the application for such permit; likewise, no delivery of said alcoholic malt beverages by such dealer, or on his behalf shall be made on the street or at the curb, but such dealer may make delivery of alcoholic malt beverages on such licensed premises or to the home of any customer in bottles or in such containers as are permissible under the rules and regulations of the alcoholic beverage commission in a quantity not to exceed forty-eight pints at any one time.'

In his said complaint for declaratory judgment, the appellant averred that he is engaged in the restaurant business in the City of Seymour, Indiana; that coincidental thereto he has spent large sums of money on fixtures and equipment, that he is the holder of a beer retailer's, wine retailer's and liquor retailer's permit (three-way permit) to sell alcoholic beverages, and has installed and owns certain fixtures and appliances peculiar to the retailing of alcoholic beverages on his premises.

The complaint further alleges that the 1941 amendment of Section 11 of the Alcoholic Beverages Act of 1935 provides that it shall be unlawful for the holder of a beer dealer's permit to sell iced or cooled beer. The complaint further alleges that the 1953 amendment of Section 2 of the Alcoholic Beverages Act, as quoted above, added Subsection C which, in substance, authorized package liquor store dealers 'upon application and receipt of a beer dealer's permit' to sell alcoholic malt beverages 'as are permissible under the rules and regulations of the alcoholic beverage commission.' The complaint further alleges that the Alcoholic Beverage Commission,[140 INDAPP 13] pursuant to the provisions of said Sub-section C, issued Bulletin No. 149 which provided that, from and after August 1, 1963, certain package liquor store dealers would be authorized to sell cold beer for off-the-premises consumption.

Said Bulletin No. 149, omitting the formal parts, reads as follows:

'SUBJECT: SALE OF COLD BEER BY PACKAGE LIQUOR STORE

DEALERS

Pursuant to a petition presented to the Indiana Alcoholic Beverage Commission relative to the sale of cold beer by package liquor store dealers in the State of Indiana, the Indiana Alcoholic Beverage Commission has fully considered all facts, circumstances, and statutory provisions with respect to the authority of package liquor store dealers to sell cold beer.

On and after the 1st day of August, 1963, it will be the policy of the Indiana Alcoholic Beverage Commission that package liquor store dealers will be authorized to sell cold beer for consumption only off said package store premises provided that such package liquor store dealer is located in a metropolitan area which, in the discretion of the Commission, is such as to afford full and adequate opportunity to police the sale of such cold beer and thereby protect the health, safety, and welfare of the people of the state of Indiana.

The above and foregoing authorization is applicable only to those persons or firms holding a valid package liquor store dealers permit issued by the Indiana Alcoholic Beverage Commission.'

The appellant's said complaint alleges, also, that an actual controversy exists between the appellant and the appellees as the Alcoholic Beverage Commission, and that the appellant's restaurant business, together with the furniture, fixtures and appliances of his tavern business and his property rights therein, exclusive of his said alcoholic beverage permit and the use of such alcoholic beverages, will be damaged by virtue of such sale of iced and cooled beer by package liquor store dealers who are competing with the appellant under the [140 INDAPP 14] rules and regulations adopted by the Alcoholic Beverage Commission pursuant to the 1935 Alcoholic Beverages Act as amended, and that as a result of such controversy, the rights, status and relationship of the parties to the action are affected.

Appellees (defendants below) subsequently filed their motion for change of venue from Marion County, Indiana, which was granted and the case was venued to the Hamilton Circuit Court.

The Attorney General of Indiana, on behalf of the appellees, filed a verified motion to dismiss the appellant's cause of action for declaratory judgment upon the asserted ground of the lack of jurisdiction over the subject matter of this particular cause. In support of said motion the appellees, in essence, asserted the following grounds which this Court feels are well taken:

1. That from the filing of the original cause by the appellant in the Superior Court of Marion County to the present time, it has been the appellees-defendants' consistent position that at all times the trial court was without jurisdiction over the said matter of the particular cause of action, purportedly for rendition of a declaratory judgment.

2. That under the authority of Indiana Alcoholic Beverage Comm. v. Deets (1962), 133 Ind.App. 444, 179 N.E.2d 217, and State ex rel. Harris v. Superior Court of Marion County, Rm. 4 (1964), Ind., 197 N.E.2d 634, the appellant had no property right in his alcoholic beverage permit and his complaint presents no justiciable issue.

On October 15, 1964, the defendants-appellees' Motion to Dismiss was sustained and Legal Paragraph I (the paragraph seeking a declaratory judgment) was dismissed.

The appellant filed his Assignment of Errors as follows:

'The appellant avers that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to appellant, in this:

1. The court erred in sustaining the appellees' motion to dismiss the appellant's complaint for declaratory judgment.

2. The court erred in dismissing Legal Paragraph I of the appellant's complaint.'

[140 INDAPP 15] Since substantially the same question was raised by both assignments of error, they were grouped and supported by one argument and will be treated likewise in this appeal.

Admittedly, as appellant contends, the Hamilton Circuit Court has jurisdiction over the general subject matter of declaratory judgments. However, it is also necessary that appellant plead sufficient jurisdictional facts to invoke the jurisdiction of the court over the subject matter in...