Polsky v. Atkins
| Decision Date | 23 July 1954 |
| Citation | 197 Tenn. 201,270 S.W.2d 497,1 McCanless 201 |
| Parties | POLSKY v. ATKINS. 1 McCanless 201, 197 Tenn. 201, 270 S.W.2d 497 |
| Court | Tennessee Supreme Court |
J. W. Anderson, Chattanooga, Henry C. Foutch, Asst. Atty. Gen., and Charles L. Cornelius, Jr., Nashville, for plaintiff in error.
Walker, Hooker, Keeble, Dodson & Harris, Nashville, for defendant in error.
This appeal is presented by Mr. Atkins, as Commissioner of Finance & Taxation, from a judgment of the Circuit Court of Davidson County wherein certiorari to an order by the Commissioner denying Polsky a license to sell liquor in Chattanooga had been granted. The trial judge after considering the record as made before the Commissioner held that there was no competent evidence upon which the Commissioner had before him to refuse this license and as a result held that the Commissioner's act in refusing the license amounted to an arbitrary action on his part.
The record shows that Polsky had for some six years prior to the institution of the action herein held a retail liquor license in the City of Chattanooga. The statute, Code Supp.1950, Sections 6648.10-6648.14, as amended, require that the applicant for a license must furnish a certificate of good moral character from the City Fathers or a certain percentage of them. The act further provides that these applications for a license are to be dated annually and that a new license in the case the application is approved is issued each year at the end of the year for the succeeding year. In 1952 the City officials of Chattanooga refused to issue Polsky a certificate of good moral character. As a result of this refusal Polsky filed a petition before the then Commissioner of Finance & Taxation, the Honorable J. M. Dickinson, as provided and authorized by Section 6648.14a, as amended, of the Code. The Commissioner of Finance & Taxation then notified by registered letter the City officials of Chattanooga of the filing of this petition and that a hearing would be had on a fixed date. At the date of this hearing the City officials of Chattanooga failed to appear and did not present any evidence or reason why they had refused Polsky a certificate of good moral character. This hearing was attended by counsel for Polsky and the Honorable M. P. Rice, Assistant Attorney General for the State. The present record contains a certified transcript of this hearing. After the hearing the Commissioner issued Polsky a license for the year 1953. At this hearing Polsky was examined and testified somewhat in detail about why he thought a certificate was refused him. He went into detail to the effect that on the night of November 1, 1952, certain police officers of Chattanooga had accused him of selling liquor after hours. He attempted to make an explanation of this and apparently did so to the satisfaction of the Commissioner as he issued a license as aforesaid after this hearing.
When the time for application for a license for the year 1954 came around Polsky again applied to the City Fathers of Chattanooga for a certificate of good moral character. These officials refused this certificate. Again Polsky filed a petition with the present Commissioner of Finance & Taxation, the Honorable Z. D. Atkins. Of this hearing the City officials of Chattanooga were again notified and appeared on the day of hearing represented by counsel. The Commissioner was also represented by Mr. Foutch, Assistant Attorney General of the State. The record of the hearing of the previous year was introduced at this hearing. Polsky was again examined and certain police officers of the City of Chattanooga were examined as to Polsky's acts on November 1, 1952. The City of Chattanooga answered this petition setting forth why they had not issued a certificate of good moral character and denied that Polsky should be issued a license. To this answer, which was sworn to, they attached as a part thereof a letter from Dr. McCallie, head of the McCallie School For Boys which set forth in effect that a minor student of his school had purchased whisky from Polsky on October 11, 1952, and set forth his objection of Polsky being granted a license. After this hearing the Commissioner denied a license to Polsky. As said before, on certiorari being granted by the Circuit Court of Davidson County...
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