Morley v. Cassinelli
| Decision Date | 28 November 1949 |
| Docket Number | 4-9097 |
| Citation | 224 S.W.2d 828,216 Ark. 175 |
| Parties | Morley, Commissioner of Revenues v. Cassinelli |
| Court | Arkansas Supreme Court |
Rehearing Denied December 19, 1949.
Appeal from Pulaski Chancery Court, First Division; Frank H. Dodge Chancellor.
Reversed.
O T. Ward and H. Maurice Mitchell, for appellant.
Alston Jennings, for appellee.
Holt, J. Dunaway, J., disqualified and not participating in the decision.
Holt J.
August 10, 1949, following a hearing before the Arkansas State Commissioner of Revenues, the beer permit previously issued to appellee, V. E. Cassinelli, operator of a restaurant known as the Brass Rail in Little Rock, was by order of the Revenue Commissioner suspended for a period of 60 days. The grounds on which the Commissioner based the suspension order were that the evidence showed that appellee sold beer to minors, and allowed whiskey to be drunk, in his restaurant.
The appellee filed complaint, and sought injunctive relief in the Pulaski Chancery Court, and alleged among other things "that the testimony taken at the said hearing before the Commissioner was insufficient to justify the suspension ordered by the defendant; that the action of the defendant in attempting to suspend plaintiff's permit is arbitrary and unlawful; that said action was taken without cause and that the plaintiff has at all times conducted his said business in a proper and lawful manner."
His prayer was that the suspension order be declared void and the Revenue Commissioner permanently restrained from interfering with appellee's business, or the sale of beer by appellee.
From the decree granting the relief prayed is this appeal.
At the outset we must bear in mind that we are dealing here with a permit to sell beer, and not a liquor permit. While Act 108 of the Legislature of 1935 provides for an appeal to the Pulaski Chancery Court from an order of the Revenue Commissioner affecting a liquor permit (Ark. Stats., 1947, § 48-317), we find no provision in that act for an appeal to the Chancery Court of Pulaski County from an order of the Commissioner revoking or suspending a beer permit. The act specifically provides that beer that does not contain more than 5% of alcohol by weight is excepted from the provisions of the act and shall be regulated as provided by Act No. 7 of the 1933 Extraordinary Session of the Legislature. Article 1, § 6 of Act 108 (now Ark. Stats., 1947, § 48-107) provides in part:
"It is further provided that malt and vinous beverages containing more than 3.2% of alcohol by weight and not more than 5% of alcohol by weight shall be taxed and regulated as provided for malt and vinous beverages containing not more than 3.2% alcohol by weight under the provisions of Act No. 7 of the Acts of the Extraordinary Session of the General Assembly of 1933, approved August 24, 1933, (§§ 48-501 to 48-527)."
So the procedure affecting the suspension of the beer permit is governed by Act 7 of 1933, supra, which also contains no provision for an appeal to a Chancery Court. Any aggrieved person must proceed by some other method, such as injunction or certiorari.
While the language used in the decision of this...
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