State ex rel. Harris et al. v. Superior Court of Marion County et al., 245 Ind. 339
Opinion
Jackson, J. — 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 #S635354 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 cause; 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; 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 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 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 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 decennial 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 controversy, the 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 decennial 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 states 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 by virtue of said Bulletin and order the said defendants, as the Indiana Alcoholic Beverage Commission, will, unless restrained and enjoined, put said order and Bulletin into effect on August 1, 1963, and would produce great and irreparable injury to this plaintiff and to his said restaurant business and to his said property rights in and to his fixtures and appliances peculiar to the retailing of alcoholic beverages on his premises, and exclusive of his said alcoholic beverage permit, for which plaintiff has no adequate remedy at law. “7.
That said order and Bulletin #149 is an order of the defendants, and each of them, as the Indiana Alcoholic Beverage Commission, a segment of the Executive Department of the Government of the State of Indiana, and that the defendants, and each of them, by issuance of said order and Bulletin, exercised the function of the Legislative Department of the Government of the State of Indiana for the reason that the Indiana Legislature in 1941 amended
Section 11 of the Alcoholic Beverage Act of 1935, as found in Burns’ Statutes, 1956 Replacement,
Section 12-510, and reads as follows: “ T2-510 Beer Dealer’s permits — Class “A” Alcoholic malt beverage permits — Beer dealer’s permits for the sale of alcoholic malt beverages may be issued as hereinafter provided.
Any person desiring to sell alcoholic malt beverages on the premises described in the dealer’s permit, which such alcoholic malt beverages, however, shall not be used or consumed or suffered or permitted to be used or consumed upon the premises where the same are sold under such dealer’s permit, shall make verified, written application to the. commission for a dealer’s permit, on a form duly prescribed and furnished, and the commission may, in its discretion, issue such dealer’s permit, subject to the restrictions of this act, after the proceedings herein prescribed therefor shall have, been concluded.
In addition to all provisions of law relating to the holder of a beer dealer’s permit, it shall 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.’ “8.
That said exercise of such Legislative function of the Government of the State of Indiana by the defendants, and each of them, as part of the Executive Department, is unwarranted and illegal, and has caused this plaintiff great and irreparable injury and damage for which plaintiff has no adequate remedy at law, and will continue to do so, unless defendants, and each of them are restrained and enjoined from exercising said Legislative function. “9.
That an emergency exists for the granting of a temporary injunction against the defendants, and each of them herein, for the reason that said order and Bulletin is effective, as aforesaid, on August 1, 1963, and if allowed to go into effect on said date, will cause this plaintiff great and irreparable damage and injury. “WHEREFORE, plaintiff prays that an order without notice temporarily restraining and enjoining the defendants and each of them from putting said order and Bulletin into effect until final hearing and determination and that upon final hearing the defendants and each of them be perpetually enjoined from allowing package liquor store dealers from selling or displaying for sale, bartering, exchange or giving away any bottle, can, container or package of alcoholic’ malt beverages (beer) which was iced or cooled by such package liquor store dealer before or at the time of such sale, exchange or gift, and for all other proper relief.” Thereafter on July 31, 1963, Frank A.
Symmes, Jr. as Judge of the Respondent Court assumed jurisdiction of said cause and without notice issued a temporary restraining order against relators and each of them, reading in pertinent part as follows: . . are hereby enjoined and restrained from putting Bulletin and order #149 into effect on August 1, 1963, and from allowing package liquor store dealers from selling or displaying for sale, bartering, exchanging or giving away any bottle, can, container or package of alcoholic malt beverage (beer) which was iced or cooled by such package liquor store dealer before or .at.the time of such sale, exchange or gift, without notice, until further order of the Court.” That thereafter on August 12, 1963, relators filed their Verified Motion to Dismiss and Vacate Injunction for the reasons that the respondent Court had no jurisdiction of the subject matter of the action; that the plaintiff was precluded from bringing the action by the doctrine res judicata; that the action was a collateral attack upon a judgment of the Appellate Court; that the plaintiff as a permittee had no property right therein that would permit him to institute this action.
Thereafter on September 18, 1963, the respondent court overruled relators’ Verified Motion to Dismiss and Vacate Injunction; thereafter on September 20, 1963, relators filed their verified motion to reconsider, which motion was overruled by respondent court on September 23, 1963, at which time relators were ruled to plead further on or before October 1, 1963. This original action followed. The only question properly before the court in this action is the determination as to whether or not the respondent court had jurisdiction to enter the restraining order complained of. State ex rel. Fry v.
Superior Court of Lake County (1933), 205 Ind. 355, 186 N. E. 310; 19 I. L. E., Mandate and Prohibition, §161, p. 299; F. W. & H. Ind. Tr. and App. Pract., §2990 (d). It has heretofore been held by numerous decisions of this court that the issuance of a license or permit to sell intoxicating liquor is an exercise of the police power of the state to protect the public morals, and confers no contract or property right. State ex rel. Pollard et al., etc. v. Sup. Ct. Mar. Co. (1954), 233 Ind. 667, 122 N. E. 2d 612, and cases therein cited.
It is further well and firmly established that the jurisdiction and power of courts of equity to issue restraining orders and injunctions is limited to the protection of civil and property rights. State ex rel. Fry v. Superior Court of Lake County (1933), 205 Ind. 355, 186 N. E. 310; State ex rel. Feeney v. Superior Court (1934), 206 Ind. 78, 188 N. E. 486; State ex rel. v. Marion Circuit Court (1943), 221 Ind. 572, 574, 49 N. E. 2d 538; State ex rel. v. Montgomery Circuit Court (1945), 223 Ind. 476, 62 N. E. 2d 149; State ex rel. A. B. C. v. Sup. Ct., Vanderburgh Co. (1951), 229 Ind. 483, 99 N.
E. 2d 247; State ex rel. Ind. A. B. C. v. Sup. Ct. Mar. Co. (1954), 233 Ind. 563, 122 N. E. 2d 9. The legislative intent is clearly evident from the wording of the statute, Acts 1947, ch. 148, §3, p. 454, being §12-443, Burns’ 1956 Replacement, which reads in pertinent part as follows: “(
a) No person shall be deemed to have any property right in any beer wholesaler’s permit, beer retailer’s permit, beer dealer’s permit, liquor wholesaler’s permit, liquor retailer’s permit, liquor dealer’s permit, wine wholesaler’s permit, wine retailer’s permit, or wine dealer’s permit, nor shall said permit itself or the enjoyment thereof be considered a property right.” As the relief sought in the lower court was equitable in nature it follows that respondent court had no jurisdiction of the subject matter of plaintiff’s action brought therein.
The plaintiff below is in the peculiar position of asserting that a controversy exists between the plaintiff and the relators by virtue of his permit, ownership of his business, fixtures, appliances and “his property rights therein, exclusive of his alcoholic beverage permit. . . .” It is quite apparent that were it not for the “permit” plaintiff below would be totally unconcerned with any of the actions of the relators because he would in no wise be subject to any regulation promulgated by relators; it is likewise clearly apparent that no change, alteration, expansion or diminution of plaintiff’s “permit” has been made by the ruling he is attacking.
He can and does have no interest in the ruling unless his “permit” would thereby be revoked or suspended, plaintiff’s permit not being in any wise involved in the ruling he complains of, plaintiff has no justiciable issue to present, no interest in the matter, and his actions in instituting the action below amounted only to harassment of the commission and was without merit. In view of the decision we have reached it is not necessary to consider other questions raised by relators. Respondent court is mandated and ordered to dissolve the restraining order heretofore issued by it in cause No.
S63-5354 and to take such further proceedings therein as are consistent with his mandate. Landis, C. J., and Myers, J., concur. Achor, J., dissents with opinion. Arterburn, J., concurs in dissent written by Achor, J. . “Beer Dealers’ Permits — Class ‘A’ — Alcoholic malt beverage permits.- — -Beer dealer’s permits for the sale of alcoholic malt beverages may be issued as hereinafter provided.
Any person desiring to sell alcoholic malt beverages on the premises described in the dealer’s permit, which such alcoholic malt beverages, however, shall not be used or consumed or suffered or permitted to be used or consumed upon the premises where the same are sold under such dealer’s permit, shall make verified, written application to the commission for a dealer’s permit, on a form duly prescribed and furnished, and the commission may, at its discretion, issue such dealer’s permit, subject to the restrictions of this act, after the proceedings herein prescribed therefor shall have been concluded.
In addition to all provisions of law relating to the holder of a beer dealer’s permit, it shall he 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. “All the proceedings and requirements above prescribed, in case of an application for a beer retailer’s permit, including the payment of the sum of two hundred dollars [$200] in cash, if such beer dealer’s application applies to premises situated within a city of the first or second class, or one hundred fifty dollars [$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 decennial census of the United States of America, and the filing of the bond in the same penal sum, and containing the same conditions, to be approved by the commission, and the same advertisement in the same manner, and for the same number of times and length of time, notifying the public, shall be given, as in case of an application for a retailer’s permit.
Proceedings before the local board, and the duties thereof, and the proceedings of the commission with respect thereto, shall be the same as are above prescribed in case of applications for retailer’s permits for the sale of alcoholic malt beverages; and, said commission may grant or refuse said application accordingly as it deems the public interest will be best served by granting or refusing the same.
The action of the commission thereon shall be final, and no applicant shall have the right to compel the granting of such a permit. “Said dealer’s bond shall be subject to action in the same manner, for the same cause, and for the same limited amount, as is provided above for recovery in actions on a retailer’s bond. “In case of refusal to grant application, the same provisions, as made above in ease of an application for retailer’s permit, for the return of the amount of license fee paid by the applicant, less the sum of twenty-five dollars [$25.00] shall apply. “A dealer’s permit for alcoholic malt beverages shall continue in force for one [1] calendar year only, including the day upon which the same is granted.
After the expiration of said year, said permit shall be fully expired. “The holder of a dealer’s permit, while the same continues in force, and subject to revocation by the commission for the violation of any provision of this act, or for the violation of any rule or regulation of the commission, shall be entitled to purchase alcoholic malt beverages required for sale under such dealer’s permit only for permittees under this law entitled to sell to him, and such dealer shall be entitled to possess and sell such alcoholic malt beverages, in bottles only or in such containers only as specified by the 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 commission in a quantity not to exceed forty-eight [48] pints at any one time. “Said dealer’s permits may be issued to the proprietor of any drug store, grocery, store or confectionery, or to the proprietor of any store in good repute, in the judgment of the commission, which deals in such other merchandise that the sale of alcoholic malt beverages is not incompatible therewith, or likely to contravene, in the judgment of the commission, the policies and purposes of this act.
No dealer’s permit, however, shall be issued to any person disqualified under the ‘special disqualifications,’ enumerated above, excepting however, the eleventh specification in said ‘special disqualifications’: Provided, however, That it shall not be any disqualification that an applicant for a beer dealer’s permit is a corporation not organized under the laws of this state if such corporation is duly admitted to do business in the state of Indiana, and the business to which said last permit applies is within the corporate powers and purposes of said corporation, and if said corporation is otherwise qualified hereunder.
No beer dealer’s permit shall be issued to any applicant who is not within one of the classes qualified to hold the same, mentioned in this paragraph.” . “BULLETIN #149 — SUBJECT: SALE OP COLD BEER BY PACKAGE LIQUOR STORE DEALERS. “Pursuant to a petition presented to the Indiana Alcoholic Beverage Commission relative to the sale of cold beer by package liquor store dealers in the State of Indiana, the Indiana Alcoholic Beverage Commission has fully considered all facts, circumstances, and statutory provisions with respect to the authority of package liquor store dealers to sell cold beer. “On and after the 1st day of August, 1963, it will be the policy of the Indiana Alcoholic Beverage Commission that package liquor store dealers will be authorized to sell cold beer for consumption only off said package store premises provided that such package liquor store dealer is located in a metropolitan area which, in the discretion of the Commission, is such as to afford full and adequate opportunity to police the sale of such cold beer and thereby protect the health, safety, and welfare of the people of the state of Indiana. “The above and foregoing authorization is applicable only to those persons or firms holding a valid package liquor store dealers permit issued by the Indiana Alcoholic Beverage Commission.”
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