The opinion
John F. Stroud, Justice, dissenting. I respectfully dissent from the majority opinion because I cannot agree that Ark. Stat. Ann. § 48-311 (E) (Repl. 1977) is unconstitutional. By trying the case de novo, the circuit court is required to determine a question of “public convenience and advantage,” but I find this no more of an executive decision that is required of the circuit court and this court in many other statutorily authorized de novo appeals and de novo reviews of decisions of administrative boards and commissions.
This court made perfectly clear in Byrd v. Jones, 263 Ark. 406 , 565 S.W. 2d 531 (1978), that there are two methods of appealing from a decision of the Alcoholic Beverage Control Commission, and that the choice rests with the appellant. That opinion pointed out that the distinction between the two methods “is more than a mere matter of procedure.” The court acknowledged that the appellant there chose to seek an immediate decision by an appeal de novo under the Thorn Liquor Law rather than utilize the protracted procedure of seeking a review of the Commission’s findings under the Administrative Procedures Act. I think the time element differential sufficiently justifies the two appellate alternatives, but that should be a decision of the General Assembly and not of this court. I would deny the petition for Writ of Prohibition.