The practical effect of the majority opinion is to hold that a permittee, whose permit is not renewed, has a remedy, and that that remedy is by certiorari; but the remedy is unavailing when the Commissioner has refused to renew the permit. "The word of promise is kept to the ears of the permittees, but is broken to their hopes."
The majority have not seen proper to recite the facts in any of the cases save one only, and not fully so *Page 198 in that case. We are, therefore, left in doubt as to the extent of the Commissioner's discretion. The majority do not say that this discretion is absolute and arbitrary and without limitation, and Act 108 has not made it so, yet that is the effect of the majority opinion.
This act confers wide discretion upon the Commissioner. He is permitted in certain cases to revoke a permit, and is required to do so in other cases. He may grant or refuse to grant permits, and may refuse to renew permits. Section 1 of art. III of Act 108 confers upon the Commissioner the power to determine whether public convenience and advantage will be promoted by increasing or decreasing the number of permits outstanding, and this power authorizes him to choose between the holders of outstanding permits. He has other powers. But when and under what conditions may they be exercised? This question the majority do not decide.
In the case of Hardin, Commissioner of Revenues v. Spiers, 202 Ark. 804, 152 S.W.2d 1010, we had occasion to consider certain rules and regulations of the Commissioner of Revenues in regard to transporting liquors into, through and out of the state, promulgated under the authority of Acts 108 and 109 of the Acts of 1935, which are related acts. We said that the Commissioner had the power to make and promulgate these rules and regulations, but that ". . . this power must be exercised in a reasonable — and not in an arbitrary — manner." So, with all of the other powers conferred upon the Commissioner by this regulatory legislation.
Unquestionably, the Commissioner has been given very great powers under Act 108. He — and he, alone — may grant or refuse permits to wholesale dealers or to retail dealers, without which neither could legally engage in the sale of intoxicating liquors. But is this power absolute and is its exercise beyond review? If so, he has been given power dangerous to the public weal for any person to possess. It requires no great power of imagination to visualize the possibilities of the possession of that power; and no reflection on the Commissioner is intended by saying so. *Page 199
It is proper, however, to consider these possibilities in arriving at the legislative intent. For instance, would any one say that the Commissioner may refuse to issue a permit to any one and thereby render the sale of liquor unlawful throughout the state? That power might have been given; but it is certain that it was not given him.
It is true, as the majority say, that the privilege of engaging in the liquor traffic is not a natural right, but is one which may be given or withheld. But that question has been settled by Act 108, which declares that permits may be issued under the conditions there stated. The sale of liquor may, therefore, become and be a legal business and be entitled to the protection of the law as such.
It was said in the case of Hardin, Commissioner of Revenues v. Cassinelli, 204 Ark. 1016, 1022, 166 S.W.2d 258, that "Discretion, as used in respect to executive state officials, means not only discretion on questions of fact, but on mixed questions of law and fact. Whether such official decides the question right or wrong is immaterial. Having the power to decide at all carries with it the duty to decide as he perceives the law and the facts to be, and the courts have no power to review his determination on mandamus. We have, heretofore, in effect, so decided. (Citing cases)."
It will be observed, however, that the Commissioner must exercise discretion; but, when exercised, his discretion will not be controlled by the courts; but his power is not absolute and beyond review.
No hearings were had when these permits were refused, and the law does not require that there should have been. The Commissioner may act upon information obtained as a result of personal investigation, without hearing testimony of any kind. But, whatever the reason may be for refusing to issue or renew a permit, he should state that reason for his action upon the application, to the end that it may be determined whether he has acted arbitrarily or capriciously.
Here, the applicants were advised only that their permits would not be renewed, and the only reason assigned *Page 200 by the Commissioner for the refusal was that he had acted pursuant to the authority conferred upon him by Act 108. Apparently, under the majority opinion, this was sufficient, as no other reason is recited in any of these cases. If this is sufficient, it must necessarily follow that the Commissioner's power is absolute and unlimited.
If the Commissioner accords no hearing, and refuses the permit without a hearing, and does not give the reason for his action, how may it be reviewed? The majority say in the cases here involved, where no hearing was had, that "it was not necessary for the Commissioner to assign a reason for refusing to renew." Yet, they also say: "In a proper case relief would be available in circuit court through a writ of certiorari directed to the Commissioner, commanding him to send up any existing records relating to the matters complained of." It is not explained how, in any case, as in the cases here under review, where no hearing was had or record made or reason assigned, how the Commissioner might be required to "send up" non-existent records.
The majority also say: "Proof necessary to sustain the official act (of the refusing the renewal of a permit) would be that the application or petition or request for issuance or reissuance had been brought to the Commissioner's attention, and that he had acted upon it." If this, and nothing else, is all that is required, then, indeed, is the Commissioner's power absolute and beyond review.
In none of the cases here involved, save one, and in that one only partly so, have the majority recited the testimony offered in the court below in the trials from which are these appeals; and we shall not attempt to differentiate them. It would be futile to do so, as the majority hold that none of the permits should be renewed, which the court below had ordered done.
Defining the rights of an applicant to have a permit issued or renewed the majority say: "He may apply to the Commissioner, and he may insist that his request be considered and acted upon, and that he be notified of the *Page 201 result. When this has been done, mandatory provisions of the law have been complied with, and beyond that realm judicial coercion does not lie."
If these are all the rights the applicant has, then he has no rights which the Commissioner must respect. The Commissioner need only open the door to his office and say to the applicant, who is expectantly waiting on the outside, that his application has been considered and refused, and there would be no remedy by certiorari or otherwise.
It was once the law of this state that the county court of any county had the discretion to grant or entirely refuse licenses to sell liquor at all in the county, or in any township or ward of the county, although the township, ward or county may have voted at the preceding election in favor of issuing licenses. It was so held in the case of Levy, Ex Parte, 43 Ark. 42, 51 Am. Rep. 550. But it was there also held that, if the court granted license to some, it could not arbitrarily refuse other applicants who were of good moral character and had complied with the other requirements of the statute in that behalf, and, further, that when some were refused the court should give its reason for the refusal, so that the appellate court might see whether a sound legal discretion had been exercised. In other words, the county court was given a power which must have been exercised with discretion. So, also, here the Revenue Commissioner has been given powers which may not be exercised arbitrarily, but which must be exercised with discretion.
In the chapter on Intoxicating Liquors in 15 R.C.L., 63, p. 306, under the sub-title of "General Power and Discretion of Officers or Boards," in granting or refusing to grant or renew liquor permits, it is said: "But power of the officers in this respect is not unlimited; their rejection of an application must be made, not arbitrarily or capriciously, but in the exercise of a sound discretion. The term `discretion' as used in this connection has a legal meaning with safe limitations. The intendment of the law which grants it, whether expressly or by *Page 202 implication, is that the discretionary decision shall be the outcome of examination and consideration; in other words, that it shall constitute a discharge of official duty and not a mere expression of personal will. An arbitrary refusal of a license, without an examination of relevant facts, and expressing nothing but the mood of the officer, would not be, in contemplation of law, an exercise of the power granted."
Here, the Commissioner has exercised no discretion which may be reviewed. He has only exercised what he conceives to be his powers under Act 108 to refuse permits, and this the majority apparently approved.
I, therefore, dissent; and am authorized to say that Justices McHANEY and McFADDIN concur in the views here expressed.