# State Ex Rel. Harris v. Superior Court

> Indiana Supreme Court · April 17, 1964 · 245 Ind. 339

URL: https://www.frixlaw.com/law-library/cases/9532729

## Case

- **Full name:** State Ex Rel. Harris Et Al. v. Superior Court of Marion County Et Al.
- **Court:** Indiana Supreme Court
- **Decided:** April 17, 1964
- **Citations:** 245 Ind. 339; 197 N.E.2d 634; 1964 Ind. LEXIS 216
- **Precedential status:** Published
- **Opinion:** Dissent by Achor
- **Judges:** Jackson, Achor
- **Cited by:** 14 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/9532729

## Opinion text

Dissenting Opinion.
Achor, J.
— Relators have filed a petition for writ of prohibition in which they ask that a writ be issued prohibiting the respondents from further assuming or exercising jurisdiction in Cause No. S63-5354 pending in the respondent court. That action was filed in two paragraphs by one Frank King against the relators herein.
*352 In the first paragraph plaintiff King asked for a declaratory judgment seeking a declaration that package .liquor store dealers, authorized in Acts 1953, ch. 56, §1, p. 179, being §12-533, Burns’ 1956 Repl., to sell beer, be prohibited from selling iced or cooled beer by reason of the express prohibition of such sales as proyi'ded in the Acts of 1941, ch. 237, §4, p. 952, being §12-510, Burns’ 1956 Repl.
■ In the second paragraph of complaint, the plaintiff asked that a restraining order and injunction be issued, restraining and enjoining, the defendants [relators herein] from putting into effect their “order and Bulletin #149” by which the commission purportedly would authorize certain package store beer permittees to sell iced and cooled malt beverages (beer), notwithstanding the express statutory prohibition against such sales as provided in said §12-510, supra. Section 12-510, supra, provides:
“ ... 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.” [My italics.]
The trial court issued a temporary restraining order upon the second paragraph of complaint.
As we understand it, the majority opinion is made to rest upon the conclusion that, by reason of the express, provisions of §§12-443 and 12-445, Burns’ 1956 Repl., the plaintiff in said action, who is a tavern permittee, had no right to judicially challenge the proposed action of the commission and, therefore, that the *353 respondent court had no jurisdiction to review the regulations promulgated by the commission.
Any decision of the case must rest first on an understanding of the statute. The pertinent parts of the controlling statutes, supra, are as follows:
“(a) No person shall be deemed to have any property right in any . . . beer dealer’s permit, . . . nor shall said permit itself or the enjoyment thereof be considered a property right.
(b) All . . . malt beverage retailer’s permits and malt beverage dealer’s permits shall be issued, suspended or revoked in the absolute discretion and judgment of the commission. No court shall have jurisdiction of any action, either at law or in equity, to compel the issuance of any such permit, or to revoke, annul, suspend or enjoin any action, ruling, finding or order of the commission suspending or revoking any such permit, and the consent of the sovereign state of Indiana is hereby expressly withdrawn and denied in any such action, either at law or in equity.” [My italics.]
“Except as hereinafter in this section expressly set forth and provided no person shall bring any action either at law or in equity against "the state of Indiana, the alcoholic beverage division, the alcoholic beverage commission of Indiana, the excise administrator thereof, or the Indiana alcoholic beverage commission, ... in connection with the administration or enforcement of any provision of law concerning the regulation or taxation of alcoholic liquids, or their sale, use or consumption, and the consent of the sovereign state is hereby expressly withdrawn and denied in any such action either at law or in equity, and no court shall enter-i tain jurisdiction in any such action.” §12-445,. supra. [My italics.]
• In the light of the above quoted statute, the majority opinion concludes that the trial court was without jurisdiction to entertain the primary cause of action and that the plaintiff had no right to bring the action, *354 notwithstanding the fact that the plaintiff asserted a right to bring his action as the owner and operator of a restaurant and tavern to whom a beverage permit had been issued, but “exclusive of his alcoholic beverage permit,” and further, notwithstanding the fact that the proposed action of the commission was in violation of the express provisions of §12-510, supra, which prohibits the sale of iced and cooled malt beverages by a package permittee. The majority opinion is made to rest upon the fact that the legislative intent is clearly evidenced from the wording of §§12-443 and 12-445, supra, which purports to deny to the plaintiff any right to institute such an action, denies jurisdiction of the courts to review such actions, and expressly withholds the consent of the sovereign to be sued in such actions.
However, the question which this court must decide is not whether the legislature intended to vest the commission with “absolute discretion and judgment,” in the issuance, suspension, and revocation of alcoholic permits, and in the adoption of regulations pertaining thereto, including regulations which are in violation of the express provisions of the act creating it. The questions which we must consider are (1) whether a statute purporting to invest such authority in the commission is valid; (2) whether the legislature had authority to divest the courts of all jurisdiction as to the actions of the commission and, if not, (3) whether the legislature could divest a tavern permittee of all right to maintain an action to confine the commission to its lawful authority in the issuance of other permits.
With regard to the first issue, it would seem that the law is so well settled as not to require prolonged discussion. A statute which, in effect, reposes an absolute, unregulated and undefined discretion in an adminis *355 trative body, is unconstitutional in that it purports to authorize an unlawful delegation of legislative power. 1 City of Elkhart v. Murray (1905), 165 Ind. 304 , 75 N. E. 593 ; The City of Richmond v. Dudley (1891), 129 Ind. 112 , 28 N. E. 312 ; 42 Am. Jur. Public Administrative Law §45 (1942), 58 A. L. R. 2d 1099.
In the recent case of Cassidy v. Indiana State Bd. of Reg. & Exam. in Optom. (1963), 244 Ind. 137 , 191 N. E. 2d 492, 498 , this court stated:
“ . . . In order that this conclusion by the board could be said to support the further conclusion that appellant was guilty of ‘unprofessional conduct,’ it would seem that the board has been required to resort to §63-1018a, which, in remarkable language, states that, in addition to the enumerated acts defined as ‘unprofessional conduct,’ ‘any other acts that said board may find to be unprofessional conduct, shall be deemed by said board as unprofessional conduct.’ This complete abrogation of legislative authority, if relied upon by the board, would be unconstitutional. Ennis v. State Highway Commission (1952), 231 Ind. 311 , 108 N. E. 2d 887 ; State ex rel. Standard Oil Co. v. Review Bd. (1951), 230 Ind. 1 , 101 N. E. 2d 60 .” [My emphasis.]
*356 Furthermore, notwithstanding the language of the act which purports to remove the action of the Alcoholic Beverage Commission from judicial review, the action of the commission is inherently subject to judicial review insofar as its actions are contrary to the express provisions of the act creating it and defining its authority. The courts may not be deprived of this fundamental judicial function. An administrative agency of the state can grant special privileges and immunities under the police power of the state, whether for the protection of morals, health or safety, with absolute impunity from judicial review, only in a police state.
As stated by this court in Pub. Ser. Comm. et al. v. City of Indianapolis (1956), 235 Ind. 70, 83 , 131 N. E. 2d 308 :
“It is established law in this state that there is an inherent right to appeal to the courts for relief against the violations of personal or property rights as a result of administrative action. The legislature' may not absolutely deprive one of such relief or judicial review....”
Also, as stated by this court in Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 105 , 26 N. E. 2d 399 :
“Strictly speaking, there is no such thing as an appeal from an administrative agency. It is correct to say that the orders of an administrative body are subject to judicial review; and that they must be so to meet the requirements of due process. Such review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers;...” [My emphasis.]
Finally we consider the issue as to whether the plaintiff in the primary cause of action, a restaurant and *357 tavern owner and operator who has been issued a license therefor, is denied the right to maintain this action for a restraining order and injunction merely because he has no vested property right in the use and enjoyment of his beverage permit.
The cases of Indiana Alcoholic Beverage Comm. v. Deets (1962), 133 Ind. App. 444 , 179 N. E. 2d 217 ; State ex rel. Pollard et al. v. Sup. Ct. Mar. Co. (1954), 233 Ind. 667 , 122 N. E. 2d 612 , and State ex rel. A. B. C. v. Sup. Ct., Vanderburgh Co. (1951), 229 Ind. 483 , 99 N. E. 2d 247 , are cited and relied upon as authority in support of relator’s contention that the plaintiff in the court below had no right to maintain the action therein and therefore the respondent court was without jurisdiction to entertain such action. In my opinion the Deets case, supra, contains no precedent which is controlling of the case at bar. The fact that this court denied transfer in that case is not significant to the decision in this case. As stated by this court on numerous occasions, the mere fact that transfer from the Appellate Court is denied in a particular case does not necessarily imply that this court approves of more than the result reached in that case, and if transfer should be denied because of the defect in either the petition for rehearing in the Appellate Court or in the petition to transfer, the denial may be of no significance except as it serves to terminate the particular action. Flanagan, Wiltrout & Hamilton §2873, p. 409. 2 How *358 ever, the Deets case, supra, and the cases therein relied upon are clearly distinguishable from the case now in the trial court.
In the Deets case the appellee brought his action solely as a package liquor dealer permittee, whereas in this case the plaintiff brought his action as the owner and operator of a restaurant and tavern which he alleged would be irreparably damaged by relators’ proposed action. In the Deets case, supra, plaintiff brought his action (as a permittee) solely under the Declaratory Judgments Act [Acts 1927, ch. 81, §1, p. 208, being §3-1101, et seq., Burns’ 1946 Repl.], asking that the court determine that the Alcoholic Beverage Commission was entitled to enlarge the authority of his package malt beverage permit so as to entitle him to sell iced or cooled malt beverages for consumption off the premises. The Appellate Court merely held that the action did not disclose “a justiciable controversy or question, which is clearly defined and affects the legal rights, the legal statuses, or the legal relationships of the parties having adverse legal interests. Bryarly et al. v. State of Indiana et al. (1953), 232 Ind. 47, 53 , 111 N. E. 2d 277 . ...” And the court further stated that the facts therein did not disclose “a substantial *359 present interest in the relief sought in the initiator of the proceedings ... of a substantial nature which will [would] warrant particular relief by way of a judgment of conclusive character [pp. 449-450],” all of which facts were considered necessary to maintain an action under §3-1101, supra, of the Declaratory Judgments Act. In view of the express provisions of the statute, 3 an opinion as to the correctness of that decision is here reserved. It is to be noted that the remainder of the opinion in the Deets case [ 133 Ind. App. 444 ], supra, which dealt with the right of a beverage permittee to maintain an action for a restraining order or injunctive relief, which is the nature of the action before us, was mere dicta, since no such relief was sought in that case.
The case of State ex rel. Pollard v. Superior Ct. Mar. Co. (1954), 233 Ind. 667 , 122 N. E. 2d 612 , supra, was a case in which the administrative remedy of appeal was granted by statute, while in the case before us the statute denies such an appeal. It is further to be noted that after a great deal of very broad and rather loose language in that case, the writ of prohibition, however, was denied.
The case of State ex rel. A. B. C. v. Sup. Ct., Vanderburgh Co., supra (1951), 229 Ind. 483, 486 , 99 N. E. 2d 247 , cited and relied upon as authority for the proposition that a restraining order or an injunction will be granted only when a civil or property right is involved and there is no adequate remedy at law. That case also is authority for the fact that “a permit to sell alcoholic beverages is not a vested property right.” [Citing authorities.] [My italics.]
*360 The mere fact that the holder of an alcoholic beverage permit does not have a vested property right therein which he can convey or maintain as a matter of right, as against a contrary -determination by the commission, does not mean that-hé- has no'property rights which are related to the use or enjoyment of such permit while the same is in effect. Upon this issue, it has been- held:
“While a permit or license as such may not be property, the use and enjoyment of it may give to its possessor something that is valuable and which has all the qualities of property. State v. Corron, 73 N. H. 434, 62 A. 1044 , 6 Ann. Cas. 486. While it is true that the law under which the plaintiff’s license was issued provides (section 2), ‘that no person shall be deemed to have a property right in any permit issued hereunder, nor shall said permit itself or the enjoinment (sic) thereof be considered a property right’ ... On the other hand the use of the permit, once granted, has the elements of property irrespective of what the Legislature may declare about the permit itself, and except for the omnipresent and unlimited power of the state to revoke or modify the terms of the permit in the interest of the public welfare, the use of such permit, if not the permit itself, is property within the meaning of the due process clause of the Federal Constitution.” Midwest Beverage Co. v. Gates (1945), 61 F. Supp. 688, 691 .
In the present case, the plaintiff asserted that he brought his action as the owner of a restaurant and tavern business, for which he had procured the necessary fixtures and equipment and for which he. had been issued a permit. These facts, if true, vested him with property rights in the ownership and operation of his business apart from any vested property rights in- his permit. He further alleged that, unless the Indiana Alcoholic Beverage Commission was restrained and enjoined from putting the proposed Bulletin 149 into ef *361 feet, he would suffer great and irreparable injury to his restaurant and tavern business, and to his property rights in and to his fixtures and appliances related thereto.
It is not necessary to a decision in this case that we determine whether or not the facts above alleged aré sufficient for the plaintiff to sustain an action for a declaratory judgment under the first paragraph of complaint. I consider that the allegations of his second paragraph of complaint are sufficient to raise an issue as to whether or not he had such property rights in his business and equipment, and his beverage permit related thereto, as to entitle him to protect the same by an action in equity against the unauthorized issuance of beverage permits by the Alcoholic Beverage Commission, which unauthorized action would result in irreparable damage to him.
As previously stated, a writ of prohibition will not issue against a trial court unless such court lacks jurisdiction. In this case the trial court generally has jurisdiction in equity to issue an injunction. The interpretation of the statutes involved is a judicial function, properly within the jurisdiction of 'the trial court. The legislative branch of the government may not, by statute, take away the jurisdiction of the judicial branch of the government to determine the constitutionality or the interpretative meaning of a statute. Neither may the legislature deprive a litigant of the right to have a determination of his rights and privileges. If a trial court errs, the error may be corrected by appeal — not by a writ of prohibition. This court has said many times, a writ of prohibition may not be used, as in this case, to test the complaint, as by a demurrer, nor as a shortcut for an appeal. State ex rel. Durham v. Marion Circuit Court (1959), 240 Ind. 132 , 162 N. E. 2d 505 ; *362 State ex rel. Local Union No. 414 v. Allen C. C. (1960), 240 Ind. 518 , 164 N. E. 2d 648 . Jurisdiction includes the power to decide erroneously as well as correctly and, assuming that a court may decide erroneously a question before it, it does not automatically lose jurisdiction. State, etc. v. Marion Cir. Ct., etc. (1959), 239 Ind. 327 , 157 N. E. 2d 481 ; State ex rel. Durham v. Marion Circuit Court, supra.
The writ of prohibition should not be issued by this court which would interfere with the proper functions of the trial court.
Note. — Reported in 197 N. E. 2d 634 .
. An administrative board has the undoubted right to adopt rules and regulations designed to enable it to perform its duties and to effectuate the purposes of the law under which it operates, when such authority is delegated to it by legislative enactment, but it may not make rules and regulations inconsistent with the statute which it is administering. Gross Income Tax Div. v. Colpaert Realty Corp. (1952), 231 Ind. 463 , 109 N. E. 2d 415 .
The statutory authority given the State Board of Tax Commissioners to make rules and regulations to carry out the purposes for which it was constituted gives such board no authority to enact a law or add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. McCreery v. Ijams (1945), 115 Ind. App. 631 , 59 N. E. 2d 133 .
The Review Board is an administrative agency whose powers are conferred by statute and limited to such powers so conferred and any regulations made by it in conflict with organic law and statutes is wholly invalid. Hill v. Review Board, etc., et al. (1953), 124 Ind. App. 83 , 112 N. E. 2d 218 .
. “Thus, it was pointed out that the denial of transfer cannot be regarded as an approval of all that was said arguendo or by way of dicta. Harter v. Board of County Com’rs. (1917), 186 Ind. 301 , 116 N. E. 304 ; Bartenders, etc., Union v. Clark Restaurants, Inc. (1952), 230 Ind. 372 , 103 N. E. 2d 686 ; Fardy v. Mayerstein (1943), 221 Ind. 339 , 47 N. E. 2d 315 , rehearing denied 221 Ind. 339 , 47 N. E. 2d 966 . In the latter case, the court said, ‘Denial of a petition to transfer does not indicate our approval of all language of the opinion under consideration. Dicta must be read in relation to the decision. It would be. an *358 unnecessary duplication of effort for us to take over every case containing loose or even erroneous statements which, when read in the light of the facts with which the Appellate Court was dealing, are not likely to mislead courts and lawyers in the future disposition of cases.’
“The main difficulty with accepting a denial of transfer as an approval of the Appellate Court’s opinion is that while there may be one or more errors in the opinion, the petition to transfer may seek a transfer on some other ground which has no merit. Thus, in a recent case, the Supreme Court said, ‘When a transfer is denied, it does not necessarily follow that the result, or the reasoning by which the result is reached by the Appellate Court, is thereby approved by this court, since the petition to transfer may not present such matters for our determination.’ Citizens Independent Tel. Co. v. Davis (1951), 229 Ind. 217 , 97 N. E. 2d 490 .” Flanagan, Wiltrout & Hamilton Indiana Trial and Appellate Practice, §2873, p. 409.
. “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. . . .” §3-1101, Burns’ 1946 Repl. [My emphasis.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9532729. Public record. Not legal advice.