State ex rel. Brown v. McCanless

• Decision Date: 29 June 1946
• Citation: 195 S.W.2d 619,184 Tenn. 83
• Parties: STATE ex rel. BROWN v. McCANLESS, Commissioner of Finance and Taxation.
• Court: Tennessee Supreme Court

195 S.W.2d 619

184 Tenn. 83

STATE ex rel. BROWN v. McCANLESS, Commissioner of Finance and Taxation.

Supreme Court of Tennessee.

June 29, 1946

Error to Circuit Court, Davidson County; Weldon B. White, Judge.

Mandamus proceeding by the State of Tennessee on the relation of Jackson H. Brown, against George F. McCanless, Commissioner of Finance and Taxation, to compel the issuance to relator of a license to operate a retail liquor store. The Circuit Judge discharged the alternative writ of mandamus and dismissed the petition, and relator appeals in error.

Affirmed.

Tom Ed Murray and J. P. Buchanan, both of Nashville, and Fred Elledge, Jr., of Woodbury, for appellant.

C. W Tuley, Asst. Atty. Gen., for appellee.

TOMLINSON Special Justice.

The relator Brown seeks a mandamus to compel the Commissioner of Finance and Taxation of this State to issue him a license to operate a retail intoxicating liquor store at 1608-1610 Jefferson Street in Nashville. This place is located on the north side of that street. Relator has done all things required of him as a condition precedent to the procuring of such a license.

The circuit judge after a hearing discharged the alternative writ of mandamus and dismissed the petition. Relator appeals in error to this Court and insists that the commissioner acted arbitrarily and illegally in refusing to issue the license and that the circuit judge erred in holding to the contrary.

It appears from the undisputed evidence that the entrance door of the proposed liquor store is 403 feet from the nearest point of the campus of Fisk University when measured in a direct line, the University being on the south side of Jefferson Street, or 442 feet when measured by following the sidewalk and then crossing the street at the intersection and then continuing by sidewalk to this nearest point of the Fisk University campus. By traveling along the sidewalk and crossing at such intersections, it is about 700 feet from this door of this proposed liquor store to the nearest entrance to this campus. On this campus are located dormitories for the boarding students of the University, and it has more than five hundred (500) students enrolled.

Section 2 of the City of Nashville Ordinance No. 1220 forbids the maintenance of a liquor store within 600 feet 'of a school ground or college campus'.

Relator insists that the practice of city officials in ascertaining whether a proposed liquor store is within 600 feet of a college campus is to commence the measurement at the entrance door of the proposed liquor store and follow the course which pedestrians usually travel along the sidewalks and across the street until they reach that point on the campus where its entrance gate is located, without regard to whether any other point of the campus is closer to the door of the proposed liquor store. By this method of measurement, it is 700 feet from the door of the proposed liquor store in the instant case to the entrance gate of Fisk University. Relator, therefore, insists that his proposed location does not come within the distance prohibited by the ordinance, and that the commissioner of finance and taxation should have issued the license. The city officials have apparently approved this method of measurement in applying the ordinance, notwithstanding the fact that the language of the ordinance forbidding such a store within, (and we now quote from the Ordinance) '200 yards of a school ground or college campus'.

It is also insisted by relator that in as much as Section 1 of this Ordinance No. 1220 was so amended by an ordinance enacted in August, 1945, as to permit the operation of a liquor store at this particular location, therefore, Section 2 of Ordinance No. 1220 forbidding such a store within 600 feet of a school campus does not apply in this particular case. Ordinance No 1220 was enacted in 1939. Section 1 forbade the retail sale of intoxicating liquors in the City except within specified areas. Having thus prescribed by Section 1 the only areas in which liquors might be sold at retail, this 1939 Ordinance by its Section 2 prohibited such sale within 600 feet of a school ground or college campus. Then in August, 1945, Ordinance No. 45-228 (commonly known as a 'Spot Ordinance') amended Section 1 by providing that intoxicating liquors may be legally retailed at the location proposed by relator in this case. Section 2 was not referred to by the 1945 Ordinance Relator, accordingly, contends that this amendment to Section 1 expressly authorizes the operation of such store at this location even if it is within 600 feet of Fisk University, notwithstanding the prohibition of Section 2, and that Section 2 of the Ordinance in so far as this particular proposed location is concerned was repealed by necessary implication.

We find it unnecessary to determine either of these insistences since the judgment of the circuit court must be affirmed without regard to what may be the correct decision on the two above stated insistences of relator.

The law permitting any retail sale of intoxicating liquors in this State is Chapter 49 of the Public Acts of 1939 and is commonly known as the Local Option Law. Sub-section (3)(b) of Section 4 of this statute provides: The Commissioner shall have and exercise the following functions, duties and powers, to-wit: * * * (b) To make, promulgate, alter, amend, or repeal rules and regulations for the enforcement of this Act or the collection of all license fees and taxes, and all penalties and forfeitures relating thereto.' It will be observed that the commissioner is not merely authorized by this provision to make and promulgate regulations with reference to the retail sale of intoxicating liquors; it is made his statutory official duty to do so.

Pursuant to the duty required of him by statute, the commissioner made and promulgated the following regulation: 'No...