191 S.W.2d 235 | Ky. Ct. App. | 1945
Reversing.
In May, 1945, appellee applied to appellant, hereinafter called Board, for renewal of his wholesaler's license for the year July 1, 1945, to June 30, 1946. On June 8, the Administrator wrote appellee: "Owing to your conviction in the Federal Court last year and the proof in the trial of George Gould, and other irregularities, the Board feels that you are not a suitable person to hold a wholesaler's liquor license, and in view of your past record your license W. H. 16 may not be renewed." Baumer was granted a Board review, and upon hearing the Administrator's ruling was approved.
The foregoing facts were set up in an appeal to the circuit court, and in addition it was alleged that during October, 1944, appellant was convicted in the Federal Court for violation of O. P. A. ceiling price regulations; that following conviction he was cited to appear before the Board on November 22, 1944, to determine whether the conviction constituted sufficient grounds for revocation or suspension of his permit. The Board, on a guilty *317
plea, entered an order reciting that appellee had violated KRS
It is alleged that the refusal to renew was based on the same facts and circumstances upon which the order of suspension had been entered, hence the Board was without authority to refuse renewal because appellee had already been punished for the offense which was the basis of what is termed the second punishment. The prayer was to remand with directions to the Board to renew the license.
The Board answered, admitting some facts stated in the petition, but denied "all the other allegations," which we take to mean a denial of conclusions and the allegation that the order denying renewal was based on the same facts upon which suspension was grounded. The cause was submitted on the Board's transcript and the court held that the Board on its first hearing had found that the proof of conviction for violation of O. P. A. ceiling price orders was not sufficient to justify revocation, and that appellee had not committed any act since the date of suspension which would authorize the Board to refuse renewal. Under such circumstances the court held the refusal to have been arbitrary and unauthorized by law, and that a denial would constitute double punishment. The cause was remanded with directions to the Board to issue the license sought. This appeal followed.
On the hearing the Board had before it the judgment of the Federal Court which showed that Baumer plead guilty to two of eight counts of selling distilled spirits in excess of O. P. A. prices, and was adjudged to pay fines aggregating $4,000, and given concurrent sentences of imprisonment for six months, which were suspended and Baumer was placed on probation for one year. At this hearing the Administrator testified it was true that Baumer had been cited before the Board for violation of the Federal O. P. A. regulations, and it suspended his license for the 25 day period, but "we did not have a lot of proof at that time; the Federal authorities were *318 requesting a light suspension so that Baumer might be used as a witness in the Federal Court in the Gould case." It was his contention that the suspension would not bar the Board from refusing renewal, since "a lot of violations that we did not know about came up in the Gould case." He said the refusal was based partly on the fact that Baumer was convicted in the Federal Court, "but the trial in the Gould case set out so many violations that I, as administrator, felt that he was not a suitable person to whom a license should be issued. I am using the fact of his conviction, and additional facts brought out in the Gould trial, in concluding that he is not a suitable person. I doubted very much when he was suspended that we should have done that, but the Federal men were begging for light suspension so he would not be out of business when he was used as a witness."
Kinnard, Assistant District Supervisor for the Government Alcohol Tax Unit, testified that he was actively engaged in investigating the charges against Gould and Baumer. He examined Baumer's records and found that Baumer had passed all black market profits to Gould. Baumer had assisted the government in clearing up the black market. Baumer was cited for revocation of his government license (before conviction) and the citation dismissed. On cross-examination he said that Baumer did not disclose information until he called on him, and was co-operative after he was indicted. He had violated O. P. A. regulations front July, 1943, to January, 1944, in about twenty instances, but placed all money to the credit of Gould. This witness, as did others, introduced by applicant, went into detail as to the large scale operations of Baumer in connection with Gould.
Appellee contends that the order of suspension was Conclusive, and in legal effect prevented the Board from later considering the conviction or the facts on which it was based, on application for renewal for a succeeding annual period. The argument is that on the first hearing the question presented was whether or not the conviction was such an offense as would authorize a revocation of Baumer's license, and the Board found that it was not sufficient to justify more than a suspension. When we read the proof we cannot conclude that if the Board did so find, it was correct in its conclusion; on the other hand, it is clear that the suspension was to a large extent based on the insistence of Government officials *319 that a suspension would result in assistance to the Government in the prosecution of Gould, the higher up.
It is then argued that, the Board being a quasi judicial and fact finding body, its determination that the facts on the first hearing were not sufficient to justify revocation, the Board was bound by that conclusion, not in an effort to revoke, but in determining whether or not he was a proper person to whom license should be renewed, or a new license issued for another year. Counsel refers us to Keller v. Kentucky A. B. C. Board,
We find no fault with the foregoing pronouncement of principles, but they are not applicable in the case before us. The matter under discussion in the bus case was whether or not the denial of an application for permit to operate a bus line precluded the commissioner from again hearing and determining the same application. The difference, in that and this case is patent; if in the instant case the Board, following suspension, had cited Baumer to appear and show cause why his current license should not be revoked, it might be, though it is not decided, that the Board could not have revoked solely because Baumer had been convicted for violations of Federal or State statutes, one or the other, admittedly the basis of the order of suspension. However, we are not dealing with the question of revocation, but with the question of the right of Baumer to a renewal of his license, or a new license for an ensuing annual period. In determining this request the Board had before it not only the fact of the conviction, but in the meantime, *320
through its Administrator, and at the hearing, proof of the extent of the numerous violations of the Federal and State Acts by failing to observe the provisions with relation to ceiling prices. The two matters are distinct one from the other. We gather from the rather complicated statutes on the subject that there is little difference in applying for renewal and on original applications for license; the only difference, as far as we observe, being that an applicant for renewal is not required to comply with KRS
There is little to be said on the matter of double punishment for one offense. The suspension, revocation, or denial of renewal of a license is in no sense in the nature of punishment. Other portions of Chapter 243, KRS, take ample care of penalties. We have often held that a license to sell alcoholic beverages does not involve contractual or property right; that the acceptance of a liquor license carries with it the implication of an agreement that the Board might exercise the power of revocation or denial of renewal in accordance with the terms under which it was granted. Keller case,
It is admitted, as was stated by the court, that the Board might have revoked Baumer's license on the first hearing. There is no doubt on that score, but we cannot see that the suspension would in any sense operate to deprive the Board of the power to deny renewal, or issuance of a new license. Section
Under the facts presented we conclude that the Board had ample grounds for the refusal to renew, and did not abuse the discretion vested by the statute; that the Board was not barred from rejecting the application on the ground that the order of suspension concluded its powers.
Appellee moved to dismiss the appeal on the grounds that the matter presented had become moot, because following the Board's appeal and during pendency, the court had compelled the Board to forthwith issue license to Baumer. This motion was overruled on October 16, but without motion to set aside that order, we are asked in brief that the motion be treated as having been passed to merits and again considered. The court has reconsidered the motion and sees no reason for reversing its order. We are familiar with the rule that we are required to dismiss an appeal where the reversal would not accomplish any result, or where an affirmance would benefit no one; that where pending on appeal an event occurs which of necessity renders any judgment that might be pronounced ineffectual for any purpose. This rule is established by the cases cited by appellee. However, upon observation we find that the facts upon which the rule was applied differ materially from those here. In none of the cases does it appear that a public board *322
prosecuting appeal in good faith was compelled to do the act which it had in good faith refused to do, on pain of being cited for contempt. All rules have exceptions; it is not every change in circumstances which renders a case moot so as to require a dismissal of appeal; one exception is where the question is of public interest. Southern Pacific Co. v. Interstate Commerce Comm.,
The judgment is reversed with directions to affirm the Board's order of refusal to renew or issue new license for the fiscal year 1945-46.
