171 S.E. 411 | W. Va. | 1933
The license of relator, Teresa Spurdone, to dispense nonintoxicating beer, was revoked by the tax commissioner under *192 section 99, chapter 20 (Acts of the Legislature in Extraordinary Session, 1933), known as the non-intoxicating beer bill.
She seeks, by mandamus, to compel the Honorable Harry Shaw, Judge of the Circuit Court of Marion County, to entertain her appeal from the ruling of the tax commissioner. The statute authorizes the tax commissioner to revoke such license for specified causes, subject to appeal by the licensee "to a court of competent jurisdiction".
The questions for solution are, whether an appeal in such case is violative of the constitutional scheme, separating governmental powers, and, if not, whether the circuit court of Marion County has jurisdiction to hear the appeal.
As the tax commissioner is authorized to act only for specified causes, his determination involves the exercise of judicial or quasi judicial discretion, which may, therefore, be reviewed by the judiciary. Ellis v. State Road Commission,
But why should the appeal be heard by the circuit court of Marion County? The only apparent reason is that the licensee's place of business is in that county. Section 97 of the act specifically authorizes an appeal from the ruling of the tax commissioner, in assessing brewers, manufacturers or distributors with additional tax and penalties, to the circuit court of the county in which the seat of government is located. The two sections should be read together. Code 1931,
A consideration of the foregoing statutes, as well as common law principles, impels the conclusion that the appeal, whether it be regarded as a new suit or a continuation of the proceeding before the tax commissioner, should go to the circuit court of Kanawha County.
The writ is, therefore, refused.
Writ denied.