The opinion
Dissenting Opinion
DeBruler, J.
I would affirm the decision of the trial court in this case and uphold the relief he granted to the plaintiff- *71 petitioners in his judgment. In pertinent part the trial court judgment reads as follows:
“WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED by the court as follows:
“1. That the relief prayed for by plaintiff-petitioners in their Verified Petition for Review be and the same is hereby granted.
“2. That the decision of the Monroe County Alcoholic Beverage Commission rejecting plaintiff-petitioners Application for Renewal of Alcoholic Beverage Permit No. 64952, and the subsequent action of the Indiana Alcoholic Beverage Commission on August 19, 1969, sustaining the rejection of plaintiff-petitioners’ application, be, and the same hereby are set aside and annulled.
“3. That the Indiana Alcoholic Beverage Commission and its agent, the Monroe County Alcoholic Beverage Commission, be and the same are hereby ordered to issue to plaintiff-petitioners, Joseph J. Lamb and Geneva Yarbrough, their Renewal Alcoholic Beverage Permit No. 64952 for the period of September 1, 1969, to and including August 31, 1970.”
The Commission in its brief concedes that the trial court in paragraph two of its judgment properly set aside the decision of the Commission. The following statement in the Commission’s brief clearly establishes this.
“The lower court rightfully found that the Commission had not complied with procedural requirements of the Administrative Adjudication and Court Review Act and that the Commission’s decision was not supported by substantial, reliable and probative evidence.”
It is the sole contention of the Commission that the trial court committed error in ordering the Commission to issue the permit in paragraph three of its judgment. Appellant’s brief continues as follows:
“However, rather than setting aside the decision of the Commission and remanding for further proceedings, the lower court ordered the Commission to issue Applicants a renewal license.
“The effect of the lower court’s order is to renew Applicants’ Alcoholic Beverage Permit. The legislature invested the Commission with sole authority to renew Alcoholic *72 Beverage Permits. The legislature invested the lower court with authority to review the decisions of the Commission. The lower court exceeded its authority when, in effect, it renewed Applicants’ license and hence should be reversed.
“Under the provisions of this statute, the reviewing court may not substitute its judgment for that of the Commission.”
The following language of I.C. 1971, 4-22-1-18, being Burns § 63-8018, being the Administrative Adjudication and Court Review Act, authorizes reviewing courts to compel an administrative agency to issue a permit:
“The court may remand the case to the agency for further proceedings and may compel agency action unlawfully withheld or unreasonably delayed.”
In this case the appellee is the holder of permit which was required by law to be renewed each year. The local board denied the renewal. On appeal, the State Commission denied the renewal. On review, the trial court set aside the order of the Commission denying the renewal and ordered the Commission to renew the permit for a period of one year. On appeal to this Court, the Commission concedes that the trial court properly set aside its order denying the renewal. In my opinion this is a case in which lawful agency action was “unreasonably delayed” and in which a remand order by the trial court would have resulted in further delay, and in which the trial court properly ordered the appellees’ permit renewed for a period of one year.
Prentice, J., concurs.
Note. — Reported in 267 N. E. 2d 161 .