(concurring).
I concur in the result reached by my brothers Henry and Fones, but not in the opinion prepared by Mr. Justice Henry. I particularly disagree with the conclusion that municipalities of this state no longer possess any power to limit the number of retail liquor stores or to limit the permissible locations of such stores within their corporate boundaries. I agree with my brothers Cooper and Harbison that municipal corporations retain such power, but I cannot agree with their conclusion that the attempted exercise of that power by the City of Chattanooga in this instance is a valid one. I shall attempt to explain my conclusions in detail.
It is important to keep in mind the limited scope of our permissible review in this case. The controversy is before us pursuant to the writ of common law certiorari. T.C.A. Section 57 — 121. Thus, we are free to determine only whether or not the Alcoholic Beverage Commission (A.B.C.) exceed-. ed its jurisdiction or acted illegally, arbitrarily, or fraudulently and whether the record contains any material evidence to support its findings. Little v. MacFarland, 206 Tenn. 665, 337 S.W.2d 233 (1960); Sailer v. Atkins, 199 Tenn. 574, 288 S.W.2d 441 (1956); Boyd v. Burmaster, 193 Tenn. 338, 246 S.W.2d 36 (1952).
The pertinent facts of the case and its history are detailed in the opinion prepared by Mr. Justice Henry and I will not repeat them here.
The A.B.C. clearly acted legally and within its jurisdiction in granting to the Poseys a license to operate a retail liquor store at 4027 Hixson Pike in the City of Chattanooga, although the city had refused to issue a certificate of good moral character. T.C.A. Section 57 — 109(3)(a); City of Lakewood v. Tennessee Alcoholic Beverage Commission, 219 Tenn. 510, 410 S.W.2d 897 (1967); Boyd v. Burmaster, supra. The statute expressly provides that the A.B.C. has power to overrule the refusal of the city to issue a certificate of good moral character if such refusal, after a hearing, is found to have been “wrongful, illegal, or arbitrary,” T.C.A. Section 57 — 121, and this Court has expressly held that the A.B.C., in making this determination, possesses the quasi judicial power *481to determine the effectiveness of a city ordinance upon which the city has based its refusal to issue such certificate. City of Lakewood v. Tennessee Alcoholic Beverage Commission, supra.
No claim is made that the A.B.C. acted fraudulently, so the inquiry narrows down to a determination whether or not the A.B.C. acted arbitrarily and whether the record contains any material evidence to support its findings.
The city does not deny that the Poseys possess the good moral character required by the statute for issuance of the certificate in question. Nevertheless, the city refused to issue the certificate because the proposed location for the retail store, 4027 Hixson Pike, was not on one of the streets designated in the city’s ordinance for the lawful location of retail liquor stores. Chattanooga, by ordinance, limits the total number of retail liquor stores to be operated within its boundaries to fifty-four (54) and limits the location of such stores to certain named streets and portions of streets contained in a minuscule portion of the city. See Section 5-85, Code of the City of Chattanooga.
I am firmly convinced that Chattanooga’s action in refusing to issue a certificate of good moral character to the Poseys was “wrongful, illegal, and arbitrary” within the meaning of T.C.A. Section 57-121, so that the A.B.C. in overruling the city and issuing a license to the Poseys to operate a retail liquor store at 4027 Hixson Pike in Chattanooga did not act arbitrarily or without material supporting evidence.
In my view, it is wholly arbitrary for a city to refuse to issue a certificate of good moral character to a person who admittedly possesses such character. Whether or not such a certificate is to be issued should be based solely on a fair determination whether or not the applicant possesses such character. The practice which has grown up over the years whereby municipalities have sought to exercise their power to limit the location of retail liquor stores through the device of refusing to issue certificates of good moral character is most arbitrary and one which I cannot condone. I would urge that we condemn that practice and overrule the past decisions of this Court permitting it. There simply is no reasonable relation between a person’s good moral character and his proposed location for a liquor store. A city has other and legitimate recourse whereby to seek compliance with an ordinance reasonably zoning or limiting the location of retail liquor stores within its boundaries. For instance, in the event the A.B.C. should grant a license for a location in violation of such a valid zoning regulation, a city could, in my opinion, intervene in the proceedings before the A.B.C. and assert its opposition and, if necessary, seek review of an adverse A.B.C. decision in the courts.
The next question is whether or not the city is vested with any power to limit the total number and permissible locations of retail liquor stores. The general local option law, T.C.A. Sections 57-106 — 57-151, contains no provision regulating the location of retail liquor stores other than T.C.A. Section 57-118, which requires only that the premises be situated either within a municipality, as defined in T.C.A. Section 57-106, or a civil district, as defined in T.C.A. Section 57-118.
Obviously the primary authority and responsibility for the issuance of licenses rests with the A.B.C. It is my view that Chattanooga, other municipal corporations and certain unincorporated civil districts (T.C.A. Section 57 — 118) of Tennessee do possess the lawful authority to reasonably limit the total number of retail liquor stores to be operated within their boundaries and to reasonably limit the permissible locations of such stores. In my opinion, this view is fortified by T.C.A. Section 57-113 (Chapter 52, Public Acts of 1951, Section 4). In that Act the General Assembly provided for the issuance of licenses for retail liquor stores in unincorporated civil districts of 30,000 *482population, or more, provided for the selection of commissioners, and then provided:
“ . . . which said commission shall be vested with all the powers and duties with respect to the sale of alcoholic beverages within said district which may under state law be vested in the mayor and/or board of aldermen of a municipality of the state, including the right to limit the number of such stores and to limit the permissible locations within such district where such stores may be situated.” (Emphasis added.)
Prior to the enactment of this particular statute, this Court had held that the General Assembly had vested such powers in municipal corporations through the enactment of their charter provisions, e. g., State ex rel. Veal v. Mayor and Aldermen of Dyersburg, 184 Tenn. 1, 195 S.W.2d 11 (1946). Therefore, in my view, this statute constitutes a recognition and ratification by the General Assembly of the decisions of this Court that municipal corporations possess the powers in question. Of course, municipal corporations do not derive their powers from this Court but only from the General Assembly; however, in my view, the General Assembly, by enacting the various city charters and T.C.A. Section 57-113, has vested power in municipal corporations to reasonably limit both the number of retail liquor stores to be operated within their boundaries and the permissible locations of such stores. In this connection it is interesting to note that both the Poseys and the Attorney General, in their briefs, appear to concede that municipalities possess such powers. Thus, in the brief of the Poseys is this statement:
“It is conceded that the governing authority of a municipality is empowered to enact and administer local regulatory measures to fix the places where intoxicating liquor may be sold and to specify the number of such places.”
(Of course, the brief further argues that such regulatory measures must be reasonable.) In the brief filed by the Attorney General on behalf of the A.B.C. is the statement:
“This means that cities, when they choose to invoke their original charter authority to regulate alcoholic beverages, will only be allowed to regulate in the interstices of the state statutes. Thus, cities can regulate those facets of the retail sale of alcoholic beverages that are not specifically regulated by the A.B.C. pursuant to T.C.A. Sections 57-106 to 57-161. (Citing cases.) This means that cities may be able to reasonably set the number of retailers within their boundaries, but on the other hand, they cannot preclude the sale of liquor in their boundaries.”
Although it is my view that the General Assembly has given to Chattanooga the power to reasonably limit or zone the locations for retail liquor stores, I am, nevertheless, of the opinion that the Chattanooga ordinance is an unreasonable and arbitrary exercise of such power, in that, it limits the permissible locations of retail liquor stores to a very small, compact area of the city. The prescribed area of permissible location of stores is so concentrated and so small in comparison to the total area of the city and the location of its population that the A.B.C. could reasonably find that the ordinance conflicts with and frustrates the purpose of the general law in somewhat the same manner as did the ordinance in City of Lakewood v. Tennessee Alcoholic Beverage Commission, supra. Although it does not totally prohibit the location of retail liquor stores within its boundaries, as did the Lakewood ordinance, it does forbid the location of such stores in a vast area of the city and it does so for no apparent reason. The ordinance does not specify any objective standards for determining permissible locations. Such regulations usually specify that locations be in commercial zones or be a certain distance from certain institutions and from other liquor stores; but, no such criteria appear in this ordinance which arbi*483trarily lists, by name, a few streets and portions of streets where stores may be located. In City of Lakewood this Court said:
“It is our view that T.C.A. Section 57— 111, read together with the rest of Title 57 of Tennessee Code Annotated, evidences a clear legislative purpose that the sale of alcoholic beverages be permitted or prohibited on a countywide basis. Beyond any peradventure of doubt, any municipal ordinance in conflict with these statutes is ineffective.” (Emphasis added.)
It is my view that the Chattanooga ordinance is so restrictive with respect to permissible locations of retail liquor stores that it is in conflict with what I believe to be the legislative purpose of the general law, viz., that such stores be fairly distributed throughout the city.
Further, it is my view that the prior decisions of this Court upholding Chattanooga ordinances on this question are not controlling for two reasons, viz., they predated the declaration in City of Lakewood of the legislative purpose of the general law and they likewise predated the massive increase in size, both geographically and population-wise, of the City of Chattanooga by recent annexations.
Finally, there is ample evidence in the record to uphold the determination of the A.B.C. that the location at 4027 Hixson Pike in Chattanooga was a suitable one. Cf. City of Lakewood v. Tennessee Alcoholic Beverage Commission, supra. It is the only retail liquor store in Chattanooga located north or west of the Tennessee River; it is in a highly developed commercial zone; and it certainly is not near to any other such store.
I would affirm the decision of the A.B.C.