dissenting:
Here, the circuit court granted the temporary injunction to prevent enforcement of the revocation until the appeal process before the circuit court had been exhausted.
The circuit court’s order clearly violates K.R.S. 243.580(3) which states in reference to appeals from the Alcoholic Beverage Control Board’s orders:
(3) No court may enjoin the operation of an order of revocation or suspension pending an appeal. If upon appeal to the Franklin Circuit Court an order of suspension or revocation is upheld, or if an order refusing to suspend or revoke a license is reversed, and an appeal is taken to the Court of Appeals, no court may enjoin the operation of the judgment of the Franklin Circuit Court pending the appeal.
The respondent alleges, and the lower court found, that the statute is unconstitutional. All parties agree that the constitutionality of the statute is the sole issue presented for decision.
The facts of this case do not present it as an ideal case to test this constitutional issue. Here the Board’s order that is being abated pending appeal is one of revocation, more than substantially supported and jus*231tified by the evidence before the Board. The likelihood of the appellant license holder ultimately succeeding on appeal from the order is more remote. If there was error on the part of the trial court, it was in the area of abuse of discretion in abating the order in the first place, not in the area of the statute’s constitutionality.
That is beside the point, however. The parties’ agreement prohibits us from dealing with the factual merits of this case and confines us to the sole consideration of the question of the statute’s constitutionality. This we are obliged to do jurally and dispassionately. I shall attempt to do so. It is addressed by a determination as to whether or not its prohibition against injunctive relief pending appeal is a legislative encroachment on the powers of the judicial branch of our government. I believe that it is and offends sections 27, 28, 109 and 116 of the Kentucky Constitution. I, therefore, would order that the motion for CR 65.07 relief be denied.
In Commonwealth v. Schumacher, Ky.App., 566 S.W.2d 762 (1978), this court stated and held:
Section 109 of the Kentucky Constitution ... vests the judicial powers of this Commonwealth exclusively in one Court of Justice headed by a Supreme Court. Under Section 116 of the Constitution the Supreme Court only has the power to prescribe rules governing appellate procedure and jurisdiction for the entire court of Justice .... Therefore, when the legislature ... attempts to establish rules of appellate procedure, it is contrary to the dictates of the Constitution.
See also McCoy v. Western Baptist Hospital, Ky.App., 628 S.W.2d 684 (1981); Arnett v. Meade, Ky., 462 S.W.2d 940 (1971).
No one challenges the rule that, where the right of appeal is conferred by. statute, the statutory provisions for perfecting the appeal are to be strictly applied. We should also recognize that, as the majority in its opinion state, in defining the substantive law, the legislature may deny the use of equitable remedies. But once it provides an appellate remedy and the statutory administrative proceeding has ended and the statutory appeal to the courts has been perfected, the civil rules come into play and the procedural requirements of the statute cease. Board of Adjustment of City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978). The governing law at this point is then procedural, not substantive. After all, the governing rules are called rules of civil procedure, not rules of civil substance.
A court having jurisdiction to render a judgment has the authority to make such orders and issue such writs as may be necessary and essential to carry the judgment into effect and render it binding and operative. 42 Am.Jur.2d Injunctions § 12 (1969). See also 20 Am.Jur.2d Courts § 101 (1965).
In this regard, prior to the adoption of our modern rules of civil procedure, our then Court of Appeals in Commonwealth v. Furste, 288 Ky. 631,157 S.W.2d 59 (1941), in referring to Burton v. Mayer, 274 Ky. 263, 118 S.W.2d 547 (1938), stated at p. 62:
We also repudiated in that opinion the right of the Legislature to annul and supplant the inherent power of courts to make their own rules for the enforcement of their judgments, by the enactment of legislative rules so as to control the courts in their administration of their judicial functions. Hence, it was also said in that opinion that “The courts accept legislative co-operation in rendering the judiciary more effective. They deny the right of legislative dominance in matters of this kind.” Following that pronouncement we further said therein: “So long as the rules of practice fixed by the Legislature accord with the proper and effective administration of justice, they should be, and they are, followed to the letter. No other rule will accord with the duty of each of the three branches of government so to co-ordinate its administration as to carry into effect the purposes of the Constitution. Where, however, a situation arises in which the administration of justice is impaired or the general rules of practice are unworkable, the duty undoubtedly rests on the courts to draw upon the reserve of their inherent power, *232not in the assertion of a domination over other co-ordinate branches of government, but in co-operation with the legislative and executive branches to carry out the purposes of the Constitution.”
Our Supreme Court has recognized this inherent power of the courts by adopting CR 65.04(1) which includes a provision for injunctive relief during the pendency of an action in cases where the acts of the adverse party will tend to render a final judgment ineffectual.
Such is always the case in an order of suspension or revocation of a license — particularly so if the suspension or revocation is for a brief period of time which is not the case here. If a circuit court is unable to stay an order of the Board revoking a license pending appeal from such order, the right of statutory appeal from the order and to a judicial review of it would be rendered illusory, nugatory and of empty consequence to a party aggrieved by it.
This inherent power has additionally been recognized by our Supreme Court in providing in CR 65.07 that the grounds for the interlocutory relief afforded by it pending appeals in this court are the same as those specified in CR 65.04(1).
Clearly, both from the meaning and effect of the statute and, we hesitatingly might add, from the very language used in the statute, “No court may enjoin,” we should conclude that the provisions of K.R.S. 243.580(3) are a blatant and seemingly deliberate legislative encroachment on the power of the judicial branch of our government, and are, therefore, unconstitutional.
I agree with the view in the majority opinion that much mischief could result if the legislature did not have strict control of and compliance with laws dealing with alcoholic beverages. Public opinion demands it and rightfully so.
However, greater mischief could result if we ignore constitutional safeguards that protect not just those guilty of mischief or potentially so but also protect the innocent who are unjustly charged who could become victims of a greater mischief in an unconstitutionally regulated and controlled government. Upholding constitutional principles for miscreant citizens who flout the law guarantees those same principles for good citizens who uphold and follow the law.
The Board’s motion for CR 65.07 relief should be denied.