Yarbrough v. Beardon

• Decision Date: 10 January 1944
• Docket Number: Nos. 4-7234, 4-7249.,s. 4-7234, 4-7249.
• Citation: 177 S.W.2d 38
• Parties: YARBROUGH et al. v. BEARDON et al. PHILLIPS v. FOREMAN et al.
• Court: Arkansas Supreme Court

Page 38

177 S.W.2d 38

YARBROUGH et al. v. BEARDON et al.

PHILLIPS v. FOREMAN et al.

Nos. 4-7234, 4-7249.

Supreme Court of Arkansas.

January 10, 1944.

Rehearing Denied February 7, 1944.

Appeal from Circuit Court, Western Division, Lawrence and Grant Counties; S. M. Bone and Thomas E. Toler, Judges.

Proceedings by W. B. Yarbrough and others against R. E. L. Beardon and others, and by L. A. Phillips against L. D. Foreman and others, involving the constitutionality of Initiated Act No. 1, adopted in 1942, authorizing county-wide local option elections. From judgments, W. B. Yarbrough and others and L. A. Phillips appeal.

Affirmed.

Ed F. McDonald, of Sheridan, and Ed E. Ashbaugh and Miles & Amsler, all of Little Rock, for appellant Phillips.

Harry C. Robinson, of Little Rock, and D. Leonard Lingo, of Walnut Ridge, for appellants Yarbrough and others.

Curtis DuVall, of Sheridan, for appellees Foreman and others.

E. H. Tharp, of Walnut Ridge, and H. W. McMillan, of Arkadelphia, for appellees Reardon and others.

D. D. Glover, of Malvern, Madison K. Moran, of Cabot, J. S. Abercrombie, of Little Rock, Williamson & Williamson, of Monticello, and McMillan & McMillan, of Arkadelphia, amici curiæ.

McHANEY, Justice.

These cases have been consolidated for trial in this court since both present for decision the same principal questions, — the constitutionality of Initiated Act No. 1, adopted by the vote of the people at the general election held on November 3, 1942, Acts 1943, p. 998.

The appeals in both cases involve county-wide local option elections in which the manufacture and sale of intoxicating liquors was voted out of the counties of Lawrence and Grant, on petitions therefor pursuant to the provisions of said Act No. 1, the sufficiency of which petitions is conceded in both cases.

It is earnestly insisted that said Act No. 1 is in conflict with amendment No. 7, the initiative and referendum amendment to the constitution, first, in that said Act provides that the county court shall order a special election within a designated time at which the question of the manufacture and sale of liquor shall be voted on, whereas Amendment No. 7 provides that "All measures initiated by the people * * * shall be submitted only at the regular elections, * * *"; and, second, "it attempts to delegate authority belonging to the executive or legislative branch of the government to the judiciary".

First. It is argued that the election under said Act 1, at which the question of prohibition is submitted, is a "measure" within the meaning of Amendment No. 7 and that it could be submitted only at a regular election. Said Amendment defines the word "measure" as including "any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character." A similar, if not exactly the same question, was decided contrary to the contention of appellants in Johnston v. Bramlett, 193 Ark. 71, 97 S.W.2d 631, 632, wherein we said: "Amendment No. 7 to the Constitution has no application. This is not an initiated act as provided for in that amendment. It is merely a submission to the legal voters of the county on the question of the sale of liquor, and is more in the nature of a referendum than an initiative petition. The law requires that the county court, when a petition containing 35 per cent. of the legal voters is signed and filed, make an order for an election for the purpose of taking the sense of the legal voters of the county who are qualified to vote at elections of county officers." While that case was decided under the provisions of Act 108 of 1935, prior to the adoption of said Act 1, which amended the liquor laws so as to reduce the necessary number of signatures on the petition from 35 per cent of the legal voters to 15 per cent, still the question here involved is the same. We there further said: "There is no conflict between this law (Act 108) and the Constitution. This is not an election provided for by the Constitution, and the provisions of the Constitution cited have no application." And we add here that such a vote does not constitute the submission of a "measure" within the meaning of Amendment No. 7.

Second. Nor can we agree that the Act is an unconstitutional delegation of executive or legislative authority to the judiciary. Act No. 1 provides for presenting the petition to the "County Court," and, if sufficient, "said County Court shall order a Special Election," etc. This is not an unconstitutional delegation of executive or legislative authority to the County Court, for the Constitution Art. 7, Section 28, specifically provides: "The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, (a) ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes (b), and in every other case that may be necessary to the internal improvement and local concerns of the respective counties." Under this provision it has many times been held by this court that the county courts may perform many ministerial duties, many of them of the kind here in question, such as county seat removals and elections, Russell v. Jacoway, 33 Ark. 191; contests over liquor elections, Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680. The passing on the sufficiency of the petitions here involved and the calling of the elections were matters of local concern to the people of Lawrence and Grant Counties and the authority delegated by said Act 1 is within the express grant under the constitution.

In the Grant County case the further contention is made that said Act 1 is in conflict with the due process clause of the 14th Amendment to the Federal Constitution in that it makes no provision for notice to interested parties so that they may appear and be heard. We cannot agree. In 1905, this court, in Re Sarlo, 76 Ark. 336, 88 S.W. 953, 954, said:

"The authorities are practically uniform in holding that a liquor license is a mere privilege, revocable at the will of the state. It is not a contract between the state and the licensee, and no property rights inhere in it. Constitutional limitations against impairing obligations, retroactive laws, etc., cannot be invoked in support of rights under it. It is not a vested right for any definite period; in fact, is not a vested right at all, but is a mere permission temporarily to do what...