State ex rel. Harris v. Superior Court of Marion County, (Room No. 4)

• Decision Date: 17 April 1964
• Docket Number: No. 4,No. 30478,4,30478
• Citation: 245 Ind. 339,197 N.E.2d 634
• Parties: STATE of Indiana, on the relation of Joe A. HARRIS, as Chairman of the Indiana Alcoholic Beverage Commission, Robert Halliday, as a Member of the Indiana Alcoholie 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, Relators, v. The SUPERIOR COURT OF MARION COUNTY, (ROOM NO. 4), and Frank A. Symmes, Jr., as Judge of said Superior Court of Marion County (Room), Respondents.
• Court: Indiana Supreme Court

Page 634

197 N.E.2d 634

245 Ind. 339

STATE of Indiana, on the relation of Joe A. HARRIS, as Chairman of the Indiana Alcoholic Beverage Commission Robert Halliday, as a Member of the Indiana Alcoholie 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, Relators, v. The SUPERIOR COURT OF MARION COUNTY, (ROOM NO. 4), and Frank A. Symmes, Jr., as Judge of said Superior Court of Marion County (Room No. 4), Respondents.

No. 30478.

Supreme Court of Indiana.

April 17, 1964.

Rehearing Denied June 2, 1964.

Edwin K. Steers, Atty, Gen., Robert W. McNevin, Asst. Atty. Gen., John E. Hirschman, Deputy Atty. Gen., for appellants.

Joseph T. Quill, John G. McNutt, Indianapolis, for appellees.

JACKSON, Justice.

The case at bar is here on a Verified Petition for Writ of Prohibition seeking, in the alternative, a writ prohibiting the respondents from further assuming or exercising any jurisdiction in cause #S63-5354 pending therein and further a mandate to dismiss said asserted cause of action and a further order to show cause why respondents should not be permanently prohibited from further assuming or exercising any jurisdiction in said casue; or that respondents be mandated and ordered by this court to dissolve said restraining order; and that upon due return or in default of return to said writ, that the same be made permanent.

In order to arrive at a clear understanding of the issues here involved we deem it necessary to review the factual background of the issues presented the respondent court. The record before us discloses the following facts:

On July 31, 1963, one Frank King filed his complaint against relators in two paragraphs in the respondent court seeking in paragraph I thereof a declaratory judgment against the sale of iced or cooled malt beverages pursuant to Acts 1941, ch. 237, § 4, p. 952, being § 12-510, Burns' 1956 Replacement; ¹ and in paragraph II of said complaint an Injunction and Restraining Order, first without notice temporarily restraining and enjoining relators from putting into effect bulletin and order #149 ² until final hearing and determination, and upon final hearing defendants (relators here) be perpetually enjoined from allowing package liquor store dealers from selling, etc., giving away or otherwise disposing of any iced or cooled alcoholic malt beverages (beer).

Plaintiff's first paragraph of complaint, omitting formal parts thereof, signatures and exhibits thereto reads as follows:

'1. That he is engaged in the restaurant business and coincidental thereto has spent large sums of money on fixtures and equipment which he owns, for his place of business in the City of Seymour, State of Indiana.

'2. That he is also a holder of a beer retailer's, wine retailer's and liquor retailer's permit (3-way permit) to sell alcoholic beverages and, not including said permit, has installed and owns certain fixtures and appliances peculiar to the retailing of alcoholic beverages on his premises in said City.

'3. At the 1941 session of the General Assembly of the State of Indiana, said Genral Assembly duly passed an Amendment to the Alcoholic Beverage Act; that Section 11 of Alcoholic Beverage Act of 1935 was thereby amended, under Section 4, Chapter 237 of the said Acts of 1941, to provide that in addition ot all provisions of law relating to the holder of a beer dealer's permit, it should 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.

'4. That thereafter, Chapter 56 of the Acts of 1953, Section One, amended the said Alcoholic Beverage Act allowing package liquor stores to sell alcoholic malt beverages under certain conditions which said Chapter 56 declared that in addition to the commodities which a package liquor store may sell under existing law, they shall be permitted to sell the following:

"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 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 decinnial 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 (48) pints at any one (1) time.'

'5. That on or about July 26, 1963, the defendants herein, acting as the Indiana Alcoholic Beverage Commission, issued Bulletin #149 which stated that effective August 1, 1963, certain package liquor store dealers would be authorized to sell cold beer for consumption off the premises of such package liquor stores, a copy of which Bulletin is attached hereto, made a part hereof, and marked Exhibit 1.

'6. That an actual controversy exists between the plaintiff and defendants for the reason that the plaintiff is subject to the rules and regulations of the defendants, as the Indiana Alcoholic Beverage Commission, under the 1935 Alcoholic Beverage Act of Indiana, as amended, and that his said 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 beer dealers who are competing with this plaintiff under the rules and regulations as enunciated in the 1935 Alcoholic Beverage Act as amended, and that as a result of such controversyThe rights, status and relationship of the parties hereto are affected.

'WHEREFORE, the plaintiff prays that the Court declare that the prohibition against the sale of iced or cooled malt beverages contained in Section 4, Chapter 237 of the Acts of 1941 (Section 12-510) is of present force and effect with regard to beer dealer's permits.'

Plaintiff's second paragraph of complaint, omitting formal parts thereof, signatures and exhibits thereto reads as follows:

'1. That he is engaged in the restaurant business and coincidental thereto has spent large sums of money on fixtures and equipment which he owns, for his place of business in the City of Seymour, State of Indiana.

'2. That he is also a holder of a beer retailer's wine retailer's and liquor retailer's permit (3-way permit) to sell alcoholic beverages and, not including said permit, has installed and owns certain fixtures and appliances peculiar to the retailing of alcoholic beverages on his premises in said City.

'3. At the 1941 session of the General Assembly of the State of Indiana, said General Assembly duly passed an Amendment to the Alcoholic Beverage Act; That Section 11 of Alcoholic Beverage Act of 1935 was thereby amended, under Section 4, Chapter 237 of the said Acts of 1941, to provide that in addition to all provisions of law relating to the holder of a beer dealer's permit, it should 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.

'4. That thereafter, Chapter 56 of the Acts of 1953, Section One, amended the said Alcoholic Beverage Act allowing package liquor stores to sell alcoholic malt beverages under certain conditions which said Chapter 56 declared that in addition to the commodities which a package liquor store may sell under existing law, they shall be permitted to sell the following:

"C. Alcoholic malt beverages upon application and receipts of 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 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 decinnial 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 (48) pints at any one (1) time.'

'5. That on or about July 26, 1963, the defendants herein, acting as the Indiana Alcoholic Beverage Commission, issued Bulletin #149 which...