(dissenting).
I am unable to agree with the decision reached in this case by my associates that the issue before this Court is, is the evidence sufficient to support the conclusions and judgment of the District Court and that the substantial evidence rule has no *511application. I do not desire to write at any considerable length, but to briefly ■suggest my views. In doing so I assume, as I believe the agreements of the parties, the findings and conclusions of the district judge and his judgment disclose that the transcript of the evidence heard by the county judge was presented to and considered by the District Judge.
It is my conclusion, based upon the consistent holdings of the several Courts of Civil Appeals, including this court, that the issue before the District Court and this Court is, was the order of the County Judge based upon substantial evidence reasonably sufficient to support it, or did he act arbitrarily and capriciously? There is no question about his authority to act. If there be substantial evidence reasonably sufficient to support the order then the appellate courts, which is thought to include the District Court, is without power to disturb it. Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227; Texas Liquor Control Board v. Blacher, Tex.Civ.App., 115 S.W.2d 1030;
State v. Peeler, Tex.Civ.App., 200 S.W.2d 874. As held in Texas Liquor Control Board v. Jones, supra, the character of de novo trial provided by the statute is one limited to the inquiries just noted and not one that entirely supersedes and ignores the trial had before the County Judge. The Legislature must have had in mind that charter of de novo trial when it amended the statute in 1943, with knowledge of the holdings and constructions of the several Courts of Civil Appeals.
It seems to me the testimony is altogether sufficient and substantial enough to reasonably support the order of the County Judge. The testimony before him on the issue that the applicant made false statements in his application was the testimony of Antonio J. Gonzales and Mrs. John Peterson. Gonzales, a contractor, testified both Saiz and his brother-in-law, Hyder, together and in the presence of each other told him they were partners in the business; that Hyder appealed to him on the grounds he had already put $2,000. of his own money in the business, and that they proposed to keep up the plumbing between the premises to be occupied and Gonzales’ residence if he would withdraw his protest. Mrs. Peterson testified Saiz and Hyder had together talked to her and the substance of their conversation was they were partners and interested together. Of course, on the trial Saiz denied this testimony and claimed to be sole owner.
On the other issue, another basis of the County Judge’s order, was there were neither churches nor schools within 300 feet of the location, but that there were numerous residences occupied by families with small children in the immediate vicinity. Gonzales and his wife testified they lived on the alley in the rear of the premises, 48 feet from the corner, and that they had four children, three daughters and a son between the ages of six and ten. The Burleson School is a block and one-half away. The parking space is limited and it would be necessary to park on the alley and a narrow side street where children played. There is a church two blocks away; a tourist court, where families and small children reside, one-half block away and others close by. There were some fifty children in the immediate neighborhood. There was testimony that another bar had been operated previously very near this location and that its presence caused much confusion, annoyance and trouble to the people who lived near and who protested and gave testimony on the hearing before the County Judge.
I am unable to avoid the conclusion the testimony was amply substantial and sufficient to reasonably support the order of the County Judge and the fact, aside from any other testimony, four small children reside, if not in fact, virtually under the same roof sufficient to justify the conclusion reached by the County Judge the location of the tavern would jeopardize the peace, safety, morals and health of the community and the public, and that the District Judge was in error.
The conclusions reached by the majority add still further to the confusion existing in the decisions of the several Courts of Civil Appeals as is pointed out in State v. Peeler, supra, and should provoke a clarification of the situation, important as it is to the *512public, officers who administer the law and the courts called upon to construe it.
All the authorities seem to agree neither the District Judge nor the Court of Civil Appeals may substitute their judgment for that of the County Judge, or Board, as may be done if the trial in the District Court is de novo in the sense that it is entirely anew and in wholly disregard of the hearing before the lower court. It is of no consequence that the higher courts might have reached a different conclusion on the same evidence.