Argenta Retail Liquor-Dealers' Ass'n v. McClure ( 1914 )

Smith, J.,

(after stating the facts). We have recently had occasion to construe the Act No. 59 of the Acts of 1913, commonly known as the Going law, and by which name it will hereinafter be designated. See Havis v. Philpot, 115 Ark. 250; Hickey v. State, 114 Ark. 526; McClure v. Topf & Wright, 112 Ark. 342, 166 S. W. 174. In these cases it was decided that this Going Act did not provide for 'an election, nor did it undertake to prescribe any class of persons to whom license to sell liquor might be issued; but it was held in.those cases that the State, in the exercise of its police power, had -undertaken to prescribe a condition precedent for the issuance of liquor license to iany one. This Going Act 'became effective on the 31st day of Deoegniber, 1913, and by 'Section 1 of that act it is made unlawful for any court, or town or city council, or any officer thereof, to issue .any license, authorizing the sale of intoxicants, except upon the conditions prescribed 'by -said act. -Section 2 of said act states the conditions under which license may be issued to any one, and its provisions, so -far ¡as they need ¡be considered 'here, ¡aire .as follows:

“Section 2. When a majority of the adult white inhabitants living within the incorporated limits of -any incorporated town or city in this State, shall have signed a petition t-o the county court of the county in which said town or city is situated, asking that license for the sale of intoxicating liquors be issued for that town or city, then the said county court may issue such license for a period already provided by law.”

(1) It is true that the petition in this case did not state the year for which the petitioners desired the court to grant licenses for the sale of liquor. The presumption would be that petitioners desired immediate action of the court, and such action would, of course, cover the present year. Although the petition does not state the year, its very language indicates the desire of the petitioners to have action -taken for the present year.

But the principal question in this case, and the one upon which the court below based its findings, was that the Going Act -contained no provision for the filing of a second petition in any given year. The finding of the court 'below was evidently based upon the view, now urged upon us, that it is the policy of the law to have these questions settled, and that when petitioners have once invoked the action of the court, and have been unsuccessful because of their failure to secure the signatures of the requisite majority, that the policy of the court thereby becomes fixed for t'he remainder of that year and the court is thereafter -without jurisdiction to entertain a second petition. But such is not the language of the statute. Sections 5128-5132 of Kirby’s' Digest constitute what is commonly known as the three-mile law, and section 5129 of Kirby’s Digest provides that “whenever” the adult inhabitants residing within three miles of any school, church, or institution of learning, shall desire to prohibit the sale or giving away of intoxicating liquors of any kind, they may file a petition with the county court of the county wherein such institution of learning or church is situated, praying that the sale or giving away of intoxicating liquors be prohibited within three miles of any such institution, and, upon the prayer of such petition being granted, it is made unlawful to sell liquor within three miles of the designated point for a period of two years, and until, upon a petition of similar requirements, this prohibitory order is revoked.

This three-mile statute has been construed by this court in a number of eases, all of which hold that the petition may be filed at any time and that the prohibitory order becomes effective whenever the prayer of the petition is granted.

It is thoroughly well settled by the decisions of this court that, notwithstanding license to sell liquor may have been properly granted, such license becomes void whenever it shall be adjudged that the requirements of this three-mile law have been met, and that there is no limitation upon the frequency with which such petitions may be filed. Alexander v. State, 77 Ark. 294.

(2) The Going law is, in principle, the converse of the three-mile law, and under its provisions the people who desire the sale of liquor become, the petitioners, and the burden is upon them to secure the assent of a majority of the adult white inhabitants. No one can sell liquor until this assent has been secured and evidenced in the manner provided by the Going Act. But, whenever that assent has been secured, the condition is then met which permits the county judge to exercise his discretion in the granting of liquor license for the remainder of the calendar year for which such petition was granted. This Going law does not undertake to limit the number of petitions which may be filed, nor does it undertake to provide when they shall be filed; and we think the proper interpretation of the portion of section 2 above set out is that a petition may be filed at any time, and that adverse aetion upon one petition by tbe county court does not preclude tbe subsequent consideration of another petition. Alexander v. Philpot, 114 Ark. 338, 169 S. W. 1187.

Tbe judgment of tbe court below is, therefore, reversed and tbe cause will be remanded with directions to overrule appellee’s motion to quash appellant’s petition.