I respectfully dissent from the conclusions reached by the Court in this proceeding.
The power to regulate the sale of nonintoxicating beer is conceded in the opinion and provided for by Chapter 12, Acts of the Legislature, 1937, Regular Session, as amended by Chapter 15, Acts of the Legislature, 1945, Regular Session. Similarly, the authority for, as well as the reasonableness *Page 220 of, the commissioner's regulation 3(a), quoted in the opinion of the Court, is conceded. It would serve no purpose further to state the reasons underlying these conclusions.
A license to sell nonintoxicating beer may be refused for three reasons: (1) The suitability of the licensee; (2) the conduct of the proposed licensee; and (3) the suitability of the place where beer is to be sold. We are only concerned in this proceeding with the suitability of the place where the relator proposes to dispense beer.
The Court's opinion is postulated upon the statement of the commissioner in a letter to the applicant to the effect that numerous persons residing at or near the place where the beer was to be sold objected to the issuance of the license. Of course, there is no legal basis for seeking or considering the approval or disapproval of persons not immediately concerned, relative to the issuance of the license to dispense nonintoxicating beer. In other words, there are no constitutional or statutory provisions for a referendum on such question, as is pointed out in the Court's opinion.
But an analysis of the reasons for the commissioner's refusal of the license to the relator shows that his real reason was the unsuitability of the place where the business was to be conducted, to-wit: the proximity of the place to a school and one or more churches.
The Court's opinion cites ample authorities for the proposition that the performance of a discretionary act by an administrative or executive officer will not be coerced by mandamus "in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive or misapprehension of law upon the part of such officer." I do not think that the facts, as disclosed by the stipulation of the parties and other parts of this record, show any act of capriciousness on the part of the commissioner. An arbitrary action is one performed according to the will or judgment of an individual. A capricious action may be defined as an uncertain or unreasonable action. Wherein *Page 221 did the commissioner act without considering the law? The statute gives him the power to make regulations and to refuse a license if the business was not to be conducted at a suitable place. In what particular was the commissioner moved by caprice? It certainly is reasonable for the commissioner to refuse a license to dispense beer at a point located near a school or churches and in a residential neighborhood. Had the commissioner assigned as his only reason that the issuance of the license was objected to by numerous residents, it could well have been characterized as capricious, but, as I have endeavored to show, the real reason for the refusal of the license was the proximity of the proposed beer dispensary to churches and schools. I think the undenied physical situation entirely eliminated capricious and arbitrary conduct on the part of the commissioner and, therefore, his discretion should not have been interfered with by this Court.
It is my opinion that this Court has substituted its discretion for that of the beer commissioner, in whom the Legislature has placed discretionary power to grant or refuse licenses to dispense nonintoxicating beer.
For the foregoing reasons, I would refuse the writ of mandamus prayed for by relator.