Evers v. Hollman

Mr. Justice Tomlinson

delivered the opinion of the Court.

This case is erroneously styled in that the beer board, not Miss Annie Evers, is the plaintiff-in-error.

Miss Evers, defendant-in-error here, challenges the authority of the acting Beer Board of Lawrence Connty to revoke her permit to sell beer, or to hear charges which, if found to be true, would authorize the revocation of her permit. The basis of this insistence was, and is, that this Beer Board was appointed by the County Judge from the membership of the Quarterly Court rather than elected by the Quarterly Court; hence, that the appointment was void. The language of the statute is that the Beer Board shall consist of the Quarterly Court or of a “Board created by any Quarterly County Court”. The Beer Board overruled this insistence, .and, after an extensive hearing, found that she had been selling beer to minors. It ordered the revocation of her permit.

Upon the hearing in the Circuit Court in proceedings under the common law writ of certiorari, as required in these beer cases',- it was held that “the purported Lawrence County Beer Board was not properly elected by the Lawrence County Quarterly Court, and any action by this Beer Board was null and void”, and that its order of revocation “be vacated”. -

The appeal in error of the Beer Board presents a number of insistences as to why this action of the Circuit Court is error.

Before any hearing was had, Miss Evers moved that the charges made against her be dismissed because the Beer Board, consisting of three members of the Quarterly Court, was appointed by the County Judge instead of being elected by the Quarterly Court, such appointment being pursuant to a resolution of the Quarterly Court that the County Judge appoint the Beer Board. There was copied in the face of the motion what is alleged therein to be a minute of the Quarterly Court supporting the allegation made. No evidence in support of this allegation was offered.

It is manifest from that just said that a rather formidable barrier stands in the way of determining whether the action of this Beer Board is void for the reason alleged in the motion. This is because a motion is nothing more than a pleading. A pleading, nothing else appearing, is not evidence. Jewett v. Graham, 62 Tenn. 16; Overton v. State, 165 Tenn. 575, 579, 56 S. W. (2d) 740.

However, we think that possibly there is in the record that which is sufficient to justify the conclusion that the parties proceeded on this question in the hearing before the Beer Board under the assumption that the above mentioned allegation of this motion is true. Hence, we will consider this allegation as proved. Jewett v. Graham, supra, 62 Tenn. at page 18: “ The averments of the declaration are not evidence, except when they are admitted in fact, or by implication of law on a failure to traverse them.” Accordingly, we reach the question of whether this order of this acting Beer Board is void as to Miss Evers.

In considering the question stated, it should be noticed that we are not dealing with an office which has no existence. We are dealing with an office which has been created by law. The duties which these three Justices of the Peace, acting as a Board, undertook to perform, and the power which they, as such Board, presumed to exercise,, were duties and powers assigned by law to such a Board. The only complaint made is that they were not appointed members of such Board by the proper authority.

Under the established facts immediately above stated, these Justices of the Peace acting, as such a Board, were not less than officers de facto. “ ‘An officer de facto is one whose acts, * * * were exercised, * * * under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; * * V” Heard v. Elliott, 116 Tenn. 150, 154-155, 92 S. W. 764, 765.

In direct point also is the holding of McLean v. State, 55 Tenn. 22, 249-250, where it is held that “it is a mistake to assume that to constitute a good officer de facto, he must be appointed or elected by the proper authority. The appointment of Horace Maynard, Judge of the Supreme Court, is in point. This court held that the Governor had no authority to make the appointment in the manner he did. Maynard acted under the Governor’s commission; no proceeding was instituted to remove him; and as to third persons, his acts were to be regarded as the acts of an officer de facto.”

At least as far back as Bates v. Dyer, 28 Tenn. 162, 163, it was held that “from public necessity, the acts of a public officer, exercising his office de facto, though not de jure, are valid as to third persons, and cannot be controverted in a collateral issue such as this.” We are referred to no authority to the contrary, and find none. The question is exhaustively discussed in Ridout v. State, 161 Tenn. 248, 30 S. W. (2d) 255, 71 A. L. R. 830, where it is shown that the above stated holding is the law of this State.

Miss Evers’ collateral attack upon the appointment of the members of this Beer Board is ruled by the authorities stated. It results, therefore, that the action of this Beer -Board in revoking her permit to sell beer, if sustained by any material evidence, must be regarded as valid in this collateral proceedings, regardless of whether the appointment by the County Judge was legal or illegal.

There is material testimony in this record to sustain the findings of this Beer Board that Miss Evers was selling beer to minors. Such sales violated the law, Section 1191.14 Code Supplement. Since Courts are not permitted to disturb the findings of the Board if supported by any material evidence, Putnam County Beer Board v. Speck, 184 Tenn. 616, 621, 201 S. W. (2d) 991, the result is that the judgment of the Circuit Court vacating the revocation order of the Beer Board must be reversed, and. the order of the Beer Board revoking the beer permit of Miss Evers be reinstated. The cause will be remanded for any further necessary proceedings. The costs will be adjudged against Miss Evers.