The opinion
On Petition to Rehear.
The petition to rehear expresses disagreement with this Court’s conclusion that the Beer Committee was not less than a de facto committee whose jurisdiction of the matter involved here could not be attacked collaterally. The Court is satisfied with its conclusion on the point. It can, however, add nothing to that already said further than to cite additional authorities. But this seems to be unnecessary, other than to call attention to the fact that as late as December, 1953 this Court expressly held that the action of a Beer Board in revoking a permit could not be attacked on the ground that the Beer Board had not been legally elected. Crowe v. Carter County, 195 Tenn. 659 , 263 S. W. (2d) 509 . It should be said that neither *371 counsel nor the Court below had the advantage of this opinion in the instant proceedings. This is because that opinion had not then been announced.
The failure of the Court to determine whether this Beer Committee is a de jure committee is criticized. Since its jurisdiction as a de facto committee with reference to the question involved could not be collaterally attacked by Miss Evers, it became immaterial in this case as to whether or not it was a de jure committee. Generally speaking, courts seek to avoid decision of an immaterial question for the same reason, on principle, that evidence immaterial to any issue of a case is excluded.
The next complaint made is that the Court erroneously considered "evidence before the purported Beer Board” in holding it to he a de facto committee. We thought that we went to extremes in order to give Miss Evers an opportunity to have considered on its merits her insistence that this Beer Board was without authority to revoke her permit.
When Miss Evers was cited to show cause why her permit should not be revoked for the reasons stated in the citation she made a motion which, for her benefit, we treated as a plea in abatement. That plea was that this Beer Board is an illegal organization in that its members were appointed by the chairman of the Quarterly Court instead of being elected by that Court. Of course, the burden was upon Miss Evers to sustain the allegations of her plea. The record certioraried to the Circuit Court did not reflect that she introduced any evidence to support this allegation of her plea. Nevertheless, we proceeded to determine the merits of this plea on the theory, as stated in the opinion, that all *372 parties seemed to .assume these allegations to be true. It was for Miss Byers’ benefit that we assumed to be true, though not supported by any evidence, this allegation of fact made in her motion which had to be treated as a plea in abatement in order to receive any consideration.
The Circuit Court vacated the Beer Board’s order revoking Miss Evers’ permit to sell beer. It did this on the theory that the Beer Board had been illegally appointed and that Miss Evers could challenge its authority in these proceedings. When this Court concluded that Miss Evers could not challenge its jurisdiction in these proceedings it then directed the restoration of the Beer Board’s order of revocation. The petition to rehear most earnestly insists that this was error in that it deprived Miss Evers, to use the language of the petition, "of her right to have the evidence introduced by all the parties before the Beer Board considered by the Circuit Judge”. This insistence is based upon what we are sure counsel, upon reflection, will recognize as an erroneous conception of the law applicable.
The only way a person may procure a review by the Circuit Court of a Beer Board’s order revoking his or her permit to sell beer is by petition for the common law writ of certiorari, Section 1191.14 Code Supplement. In such proceedings the Circuit Court is without authority to weigh the evidence. It may review the evidence solely for the purpose, and to the extent, of determining whether any of it that is material supports the action of the Beer Board. If the record contains such supporting evidence the Circuit Court may not disturb the Beer Board’s action. Putnam County Beer Board v. Speck, cited in the original opinion.
*373 Miss Evers reflected in iter petition for certiorari the same erroneous conception of the law on the point being discussed as she does in this her petition to rehear. Her petition for certiorari does not allege that the Board’s revocation order is unsupported by material evidence. On the other hand, by necessary inference it concedes that this order is supported by material evidence. The statement in the petition for certiorari is that “the proof on her behalf will disclose that she overturned and rebutted the proof offered against her”. This made no issue, since the Circuit Court is without authority to determine whether the proof on her behalf overturned the proof against her. Its authority, as heretofore noted, is limited to the ascertainment of whether the record reflected material evidence supporting the Board’s order.
Now for this Court to have remanded this case in order that the Circuit Court might weigh the evidence, as the petition to rehear insists, will amount to nothing-less than a remand of the case for a consideration by the Circuit Court of a question which the Circuit Court has no jurisdiction to consider.
For the reasons stated, the petition to rehear must he denied.