Perry v. Luding , 123 Mont. 570 ( 1950 )

MR. JUSTICE ANGSTMAN

(dissenting):

My objection to the foregoing opinion is that by it the court in effect is usurping functions of the liquor control board in the administration of the liquor laws.

I think if the liquor licenses in question here were obtained by plaintiff through fraud or misrepresentation it merely rendered them voidable and not void, and hence they were not subject to collateral attack by one not a victim of the fraud. Town v. Tabor, 34 Mich. 262, and see 46 Am. Jur., “Replevin,” see. 60, p. 36.

Here the liquor control board, the party claimed to have been defrauded, makes no claim to that effect and has filed a waiver of all interest in the appeal.

The licenses might have been revoked or set aside by the liquor control board on proceedings brought for that purpose (R. C. M. 1947, see. 4-342), but defendants who claim only the rights of plaintiff by assignment are in no position to complain that plaintiff had no right to the licenses and hence had nothing to assign.

If plaintiff had nothing to assign, then defendants acquired nothing by the assignment.

It may be too that defendants ought to have issued to them beer and liquor licenses. But that is a question for the liquor control board to decide. If they are entitled to licenses then they should have, licenses which they can use. They cannot use the ones they now have on premises other than those owned by plaintiff and his tenants in common because of the holding in the case of State ex rel. Jester v. Paige, 123 Mont. 301, 213 Pac. (2d) 441, wherein the majority of this court (Justice Freebourn and I dissenting), held that a liquor license is applicable to the premises for which it was issued and may not be transferred to other premises.

I think plaintiff should have been declared to be the owner of the licenses in question subject, of course, to the right of the liquor control board if victimized by fraud to revbke them after notice and hearing. Likewise,, whether defendants are entitled to usable licenses is a question that should be presented to the liquor control board.

Rehearing denied May 2, 1950.