# Morris v. Torch Club, Inc.

> Supreme Court of Arkansas · February 7, 1983 · 278 Ark. 285

URL: https://www.frixlaw.com/law-library/cases/7822268

## Case

- **Full name:** Jim MORRIS v. TORCH CLUB, INC.
- **Court:** Supreme Court of Arkansas
- **Decided:** February 7, 1983
- **Citations:** 278 Ark. 285; 645 S.W.2d 938; 1983 Ark. LEXIS 1254
- **Precedential status:** Published
- **Opinion:** Dissent by Billyswitzer
- **Judges:** Adkisson, Arnold, Billy, Coffman, Dudley, Hickman, Holt, Purtle, Skokos, Smith, Switzer
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7822268

## Opinion text

W. P. (Billy) Switzer, Special Justice, dissenting. It is with regret that my duty, as I see it, requires that I dissent from the majority view to remand this case for development of additional proof of how the various defendant clubs operate their respective businesses; whether they operate in accordance with Act 132 or they do not. In so doing, I am not unaware that dissenting opinions generate as little attention as a red-headed bastard at a family reunion.
If the method of operation of private clubs in dry counties is the business of this court, what about the private clubs that are not parties to this action and that number far exceeds the number of defendant clubs. It would seem that the operations of private clubs that are not parties to this action would be a legitimate concern of this court and to paint a complete picture that the majority declares is necessary to resolve a constitutional question.
If, from the voluminous additional record that will be furnished because of this remand, it appears that some clubs do and some do not operate in accordance with the provisions of Act 132 and the rules and regulations promulgated by the Alcoholic Beverage Control Board in aid of that Act, does the court propose to punish the just for the irresponsibilities of the unjust by using the non-conformance of some as a crutch to hold a statute unconstitutional?
The majority opinion said:
“We are not attempting to act as a law enforcement agency.”
I disagree. I am strongly persuaded that the court is usurping the prerogatives and responsibilities of the Alcoholic Beverage Control Board, which was charged by the Legislature with the promulgation of rules and regulations pertaining to the operation of private clubs, to assure compliance with the provisions of the Act, and delegated the sole authority to enforce the provisions of Act 132.
If Act 132 is unconstitutional, the Legislature made it so and not the day-to-day operations of private clubs. Whether private clubs operate as they are required is a matter of enforcement, and whether we think that enforcement is good or bad is inconsequential to the constitutional question involved. There is nothing in the record before this court from which the immaterial question of enforcement could be evaluated. I think the trial judge was correct in overruling the offer of proof on that point. It is irrelevant to the issue before us if the court has in fact renounced its role of policeman.
There is, I think, a good record in this case presenting a single issue, a constitutional issue, which is especially within the sole province of this court to determine and lay at ease. It has been presented to this court at considerable expense, time and effort by both parties and the apparently inexhaustible patience of the trial judge.
This is a highly emotional, volatile and political issue. It always is, another problem of alcohol. This is the second time this matter has been before this court. In Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168 , 554 S.W.2d 344 (1977), a divided court reversed and dismissed on the shaky ground that mandamus was not a proper remedy. This case is remanded by a divided court on equally unstable grounds. It will appear on the agenda of this court again at some future time. It is not difficult to decipher the game plan of the majority.
In my view, there is one sole overriding constitutional issue to decide and that is whether Act 132 conflicts with Initiated Act No. 1. It is a question of black or white, and not of orange or purple or shades in between. On constitutional questions the buck stops here. I think this court should have assumed that, responsibility and decided this case on the merits.
I fear that the majority of my brothers have wandered from the narrow path of statutory construction into the field of legislative tinkering.
I would decide the case on the merits and I would affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7822268. Public record. Not legal advice.