Kemp-Bradford VFW Post 4764 v. Wood

Maurice Mitchell, Special Justice.

David Wood and others filed a petition in the Circuit Court of Pulaski County against Karen Jones, Administrator of the Alcoholic Beverage Control Division of the State of Arkansas, and members of the Alcoholic Beverage Control Board, praying that mandamus be issued against the respondents ordering them to withdraw and void all licenses and permits of any sort issued to private clubs pursuant to Act 132 of 1969. Among other things, Act 132 authorized the Alcoholic Beverage Control Board to issue permits to private clubs as defined in the Act.

The respondents moved to dismiss the petition. Appellants, Kemp-Bradford VFW Post 4764, and other private clubs licensed under Act 132 of 1969 were granted leave to intervene. The Intervenors also moved to dismiss the petition.

The facts involved in this case are contained in a brief stipulation between the parties:

The Alcoholic Beverage Control Board and its officers were the proper officers to issue permits under Section 10 of Act 132 of 1969; they have issued and are issuing permits pursuant to that Section to private clubs in both “wet” and “dry” counties. Act 1 of 1942 was an Initiated Act. Act 132 of 1969 received 19 votes in the Senate and 74 votes in the House.

The parties also stipulated that the sole substantive legal issue raised in this case was the validity of permits issued to private clubs in counties which are “dry” under Initiated Act 1 of 1942.

Amendment 7, Section 8 of the Arkansas Constitution requires a two-thirds vote of members of each House of the Legislature to amend an initiated measure. It was stipulated that Act 132 of 1969 did not receive the required legislative vote to amend an initiated measure. The learned judge of the lower court opined that Act 132 of 1969 violates our Constitution in that it would amend Initiated Act 1 of 1942 by granting authority to issue permits for the dispensing of alcoholic beverages to private clubs in “dry” territories. No authority for the issuance of such permits exists under the initiated measure.

The circuit court issued a writ of mandamus ordering the Alcoholic Beverage Control Board and the Administrator of the Alcoholic Beverage Control Division to immediately rescind and void all permits previously issued by them for the dispensing of alcoholic beverages in “dry” subdivisions. As stated in the writ of mandamus, it was based on the premise that “mandamus is the proper remedy for the subject matter of this suit and is the only adequate remedy available to the petitioners.” This premise was reiterated by the lower court in its amended opinion when it stated that “ [T]he allegations of the petition in this case support relief against the performance of allegedly illegal acts and mandamus is the proper procedure.”

In our opinion, mandamus was not the proper procedure on two grounds. Other adequate remedies were available to the appellees; and the appellees are attempting to enforce an alleged duty which is not a plain ministerial duty for whieh a writ of mandamus may issue.

In considering the issuance of any writ of mandamus, a court should bear in mind the extraordinary nature of this remedy. Mandamus “is a summary, expeditious, and drastic writ, of an extraordinary character, sometimes referred to as the highest judicial writ known to the law, and the law has properly erected many safeguards around it to prevent its issuance in cases where irreparable injury and injustice might result.” 52 Am. Jur. 2d, Mandamus, § 4.

In regard to our first ground for denial of mandamus, it is well settled that mandamus is not allowable where there is any other adequate remedy. In Rolfe v. Spybuck Drainage Dist. Mo. 1, 101 Ark. 29, 31, 140 S.W. 988, 989 (1911), this Court stated: “As a general rule, the party applying for a writ of mandamus must show a specific legal right to its issuance, and also the absence of any other legal remedy.”

Appellants argue forcefully that other, less drastic, procedures are available to obtain any remedy to which the appellees may be entitled. We agree. While several other appropriate procedures are available for the appellees to pursue, one of the most obvious is a proceeding for a declaratory judgment. Ark. Stat. Ann. § 34-2502 (Repl. 1962) states: “Any person . . . whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status or other legal relations thereunder.” The central question which the appellees attempt to raise in this case is whether Act 132 of 1969 is valid under the Arkansas Constitution. An action for a declaratory judgment would provide the answer to this question, as evidenced by the plain language of the statute creating that procedure.

The wisdom of the rule that mandamus will not lie when any other remedy is available becomes clear when other remedies available to the appellees in the case at bar are considered. Under other procedures available for questioning the constitutionality of Act 132 of 1969, different pleadings, evidence, parties and arguments would have been possible and, in our opinion, highly probable. We believe these differences would make for a closer and fairer examination of the questioned Act and the duties, rights and privileges of the public officials and other persons which it affects.

The denial of mandamus on the ground that the appellees are attempting to enforce an alleged duty which is not a plain ministerial duty presents a closer question. While it may be argued, and some courts have ruled under particular circumstances, that a question as to the constitutionality of a statute may be raised in a mandamus proceeding, we do not believe that this argument should prevail under the circumstances existing in the case at bar. For almost eight years, the appellant Board, an agency of the executive branch of the State of Arkansas, has been issuing permits to private clubs under Act 132 of 1969. Because this Act is presumed to be constitutional until it is overturned by proper judicial authority, the appellant Board had the legal authority and duty to issue permits when statutory and regulatory requirements were met by an applicant, and the holders of these permits had the legal right to exercise the privileges properly granted to them pursuant to the Act.

Under the circumstances in the case at bar, the sounder argument as to whether the constitutionality of a statute may be questioned in a mandamus proceeding is stated in 52 Am. Jur. 2d, Mandamus, § 95:

The view has been talcen in some cases that since mandamus lies only to enforce a plain ministerial duty, and that since a plain ministerial duty cannot exist which is made to appear only by declaring a statute unconstitutional, the writ will not issue if it is necessary in order to fix upon the respondent the duty sought to be enforced to declare a statute in conflict with such alleged duty unconstitutional. A further reason given is that ministerial officers should not be required, under the penalty of being subjected to a mandate, to pass upon the constitutionality of a statute apparently governing their actions.

This argument is bolstered by language contained in Annot. 129 A.L.R. 941 (1940), which states:

Some courts have emphasized the doctrine that a statute is presumed to be constitutional until the contrary is plainly made to appear. And as the courts are the properly constituted tribunals to decide the question, and as they exercise great caution before declaring an enactment unconstitutional, they have unqualifiedly applied the general rule that nothing will justify a mere ministerial officer, who has no judicial power, in assuming that a statute is unconstitutional and acting accordingly.

The argument that we have adopted on this point is driven home by the fact that, from the record before us, the other justices of this Court do not agree as to the constitutionality of Act 132 of 1969. We cannot see how we could rule that mandamus should issue to enforce a plain ministerial duty when that duty remains unclear to this Court.

While we believe that an early determination of the substantive legal question which the appellees attempt to present is a desirable end, we cannot agree with the suggested means to reach it, whereby this Court would perform a transformation of this proceeding. What all the parties have treated and argued as an action for mandamus would be changed into a suit for declaratory judgment. The judge who heard this case below, in his amended opinion, ruled: “The subject case is not a suit for declaratory judgment and the provisions regarding the Attorney General are not applicable.” The appellees, in both their brief and their oral argument, readily admitted that remedies other than mandamus were available to them. They stated in oral argument that they chose mandamus because they believed it to be a short-cut. A change by this Court in the choice made by the appellees, in our opinion, requires a rewriting of the record before us.

In regard to the argument for treating this proceeding as a declaratory judgment action, the case at bar has several features which distinguish it from the case of Culp v. Scurlock, 225 Ark. 749, 248 S.W. 2d 851 (1955). There the question was the proper interpretation of an exemption in the cigarette tax statutes as to parties to the proceeding. Here the question which the appellees try to raise is whether all permits issued to private clubs in “dry” counties pursuant to a statute are void on constitutional grounds regardless of whether the holders of the permits are parties to the proceeding.

It is also suggested that this proceeding has become a class action. No legal authority has been cited in support of this position.

We can find no proof in the record of this case which would support a finding that:

a. the intervenors and friends of this Court represented a class which included, as members, the holders of all private club permits in “dry” counties,

b. any parties are adequately representative of any class, or

c. any form of notice, whether reasonable or not, has been given to the members of any class, advising them that a res adjudícala determination would be made of their rights.

This absence of proof as to basic class action requirements leaves the position that this proceeding has become a class action unsupported by evidence.

We do not believe the rights of the members of any class, whether alcoholic beverages are involved or not, should ever be determined without reasonable notice or without evidence that parties are adequately representative of the class. This statement is in harmony with both our concept of due process of law and the restrictive view taken by this Court toward class actions in the case of Ross v. Ark. Communities et al, 258 Ark. 925, 529 S.W. 2d 876 (1975).

The appellees cite three statutes as authority for their right to maintain a mandamus action in the Pulaski County Circuit Court. One of these statutes, Ark. Stat. Ann. § 27-603 (1962 Repl.), places venue in Pulaski County for actions brought against State boards.

Another of these statutes is Ark. Stat. Ann. § 33-102 (1962 Repl.) which defines a writ of mandamus. We can find no language in this statute which would remove either of the grounds upon which we base our opinion that mandamus is not a proper procedure in the instant case. These two grounds are part of the safeguards which have been erected around this procedure to limit its use to circumstances which require a remedy of its extraordinary character.

The appellees also cite Ark. Stat. Ann. § 48-805 (1964 Repl.) which bears the title of “Mandamus of county officials.” A reading of Initiated Act 1 of 1942 clearly indicates that this section is intended to apply to matters relating to local option elections, such as the petition for an election, its conduct, and the certification of its results, and not to a mandamus proceeding seeking to void and rescind permits granted to private clubs under Act 132 of 1969.

This opinion is written on behalf of a plurality of the justices who heard this case. Byrd, J., Hickman, J. and the writer would reverse and dismiss because we are of the opinion that appellees have not presented a case in which a writ of mandamus should be issued.

Fogi.f.man, J. would reverse and dismiss this case on its merits. He would not rule Act 132 of 1969 unconstitutional.

The decision of this Court is that this case is reversed and dismissed.

Harris, C.J., and George Rose Smith and Roy, JJ., dissent. Hoi/r, J., disqualified and not participating.