Goodall v. Williams , 271 Ark. 354 ( 1980 )

Richard L. Mays, Justice.

Petitioner, Robert Goodall, seeks a writ of prohibition to prevent the Conway County Circuit Court from trying de novo an appeal from the Arkansas Alcoholic Beverage Control Board by Conway County citizens who oppose an order by the Board granting petitioner a retail liquor license. The appeal was under Ark. Stat. Ann. § 48-311(E) (Repl. 1977), a part of the Thorn Liquor Law enacted by the legislature subsequent to the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq (Repl. 1976), another avenue of appeal, which expressly authorizes a de novo hearing. Since such hearings allow the circuit court to disregard the record below and try the entire case anew, petitioner contends that an appeal de novo from the Arkansas Alcoholic Beverage Control Board constitutes an unconstitutional exercise of executive powers by the judiciary. This issue was first raised in the circuit court by a motion to dismiss the appeal. When the circuit judge denied the motion, holding that the petitioner would have to establish his entitlement all over again, this petition followed.

The propriety of the writ of prohibition as an avenue of relief for petitioner under the circumstances alleged is not challenged by the respondent. A writ of prohibition is, of course, appropriate to relieve one from the onerous burden of litigation when the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of its jurisdiction. Midwest Lime Co. v. Independence Chancery Court, 261 Ark. 695, 706, 551 S.W. 2d 537 (1977).

We have had several occasions to comment on the scope of review of the circuit court of cases appealed from the Alcoholic Beverage Control Board pursuant to the Thorn Liquor Law, but in none of those cases was the constitutionality of de novo appeal challenged. Hewitt v. Gage, 257 Ark. 579, 519 S.W. 2d 749 (1975); Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 531 (1978); Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979). Of course we recognize that our state constitution divides governmental powers among three distinct departments: legislative, executive and judicial; each of which is prohibited from exercising powers properly belonging to either of the other two. Arkansas Constitution Article IV. Such a division of powers represents a familiar principle of our constitutional law, the enforcement of which is essential to preserve the orderly processes of government and its basic integrity.

Petitioner essentially contends that the issuance of liquor licenses is an exclusively executive function which cannot be delegated to the judiciary. Since a trial de novo allows the circuit court to substitute its judgment for that of the Alcoholic Beverage Control Board, petitioner asserts that such a trial sanctions judicial encroachment into an area constitutionally reserved to the executive.

The issue of the constitutional propriety of de novo review by the judiciary of administrative action primarily turns upon the character and legal status of the interests which are affected by administrative action. If the interests affected by administrative actions are constitutionally or statutorily preserved or preserved by private agreement, so that their enforcement is a matter of right, de novo review by the judiciary of administrative decisions altering these interests is appropriate. See Thornbrough v. Williams, 225 Ark. 709, 284 S.W. 2d 681 (1955); Civil Service Commission of Van Buren, Arkansas v. Matlock, 206 Ark. 1145, 178 S.W. 2d 662 (1944). On the other hand, if the interests affected are less than fixed or determined and their existence primarily depends upon executive or legislative wisdom, de novo review is inappropriate, and judicial review is basically limited to a determination of whether these interests have been arbitrarily or capriciously affected. See Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971). The doctrine of separation of powers therefore restricts the judiciary to a very limited review of those matters which are left to the wisdom of the executive in the application or execution of laws but imposes upon the judiciary the obligation to redetermine the matter when the executive redefines private rights.

Under Ark. Star. Ann. § 48-301 (Repl. 1977), the issuance of a liquor license depends upon the administrative determination of “public convenience and advantage.” It is not a determination which is judicially cognizable since the effort to obtain a permit hinges on executive discretion. Since the right of executive direction is constitutionally preserved, its exercise cannot be frustrated through the medium of trials de novo. We, therefore, hold that Ark. Stat. Ann. § 48-311(E) (Repl. 1977) is unconstitutional to the extent that it authorizes the circuit court to redetermine or disregard the factual base upon which the Alcoholic Beverage Control Board relies to issue a liquor license.

The writ is granted.

Purtle, J., concurs. Stroud, J., dissents.