Lexington Retail Beverage Dealers Ass'n v. Department of Alcoholic Beverage Control Bd.

• Decision Date: 07 June 1957
• Citation: 303 S.W.2d 268
• Parties: LEXINGTON RETAIL BEVERAGE DEALERS ASSOCIATION et al., Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL BOARD et al., Appellees, and LEXINGTON RETAIL BEVERAGE DEALERS ASSOCIATION et al., Appellants, v. Guy C. SHEARER et al., Appellees.
• Court: Supreme Court of Kentucky

Page 268

303 S.W.2d 268

LEXINGTON RETAIL BEVERAGE DEALERS ASSOCIATION et al., Appellants, v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL BOARD et al., Appellees, and LEXINGTON RETAIL BEVERAGE DEALERS ASSOCIATION et al., Appellants, v. Guy C. SHEARER et al., Appellees.

Court of Appeals of Kentucky.

June 7, 1957.

Allen, Duncan, Duncan & Arnold, J. L. Arnold, Lexington, for appellants.

Jo M. Ferguson, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., for appellees.

CLAY, Commissioner.

These two cases, consolidated for the purpose of appeal, present two methods of attack upon an order of the Alcoholic Beverage Control Board increasing the quota of liquor licenses in Fayette County. The first proceeding was a suit seeking an injunction, and the second was by way of appeal from the order. Both proceedings were dismissed by the trial court.

On November 3, 1955, the Board entered an order increasing retail package and retail drink license quotas for Fayette County. On November 4, three new retail package licenses were issued.

On November 10, a suit was filed by plaintiffs in the Franklin Circuit Court. The complaint stated that the plaintiffs were citizens, residents and taxpayers of Fayette County, and were also legal licensees and members of the Lexington Retail Beverage Dealers Association. This lengthy pleading alleged that the Board had been influenced and coerced into issuing the order increasing the quota; that at the hearing on the proposed increase plaintiffs were not permitted to cross-examine witnesses; that they were not permitted to put on proof; that the Board acted fraudulently, arbitrarily and capriciously in entering the order, and that the Alcoholic Beverage Control Administrator had acted arbitrarily, capriciously and improperly in issuing the new licenses. Plaintiffs prayed that the orders be adjudged null and void and that injunctive relief be granted.

Two days later the same plaintiffs filed in the Franklin Circuit Court what is styled a 'Statement of Appeal', which contains similar allegations limited to the order of November 3 increasing the quota, and it was prayed that such order be set aside.

KRS 241.060(2) authorizes the Board:

'To limit in its sound discretion the number of licenses of each kind or class to be issued in this state or any political subdivision, and restrict the locations of licensed premises. To this end the board may make reasonable division and subdivision of the state or any political subdivision into districts.'

The statute provides no appeal from an order of the Board fixing a quota under this statute. It is plaintiffs' contention that since they had no right to appeal, they had a right to attack the Board's order of November 3 on the ground that it was fraudulent and arbitrary and, therefore, in excess of the power of the Board. The plaintiffs rely on Foster v. Goodpaster, 290 Ky. 410, 161 S.W.2d 626, 140 A.L.R. 1044, wherein it was recognized that an order of an administrative body may be attacked, under certain conditions, by independent suit where no appeal is provided.

It is fundamental that a person may attack a proceeding of this nature by independent suit only if he can...