(dissenting in part).
I have no serious objection to the remand ordered by the main opinion with the suggestion (as I understand it) that there be a new and plenary hearing and determination by the County Commission as to whether plaintiff’s application should be granted, However, my preference would be to affirm the action of the trial court.
The Liquor Control Act, Section 32 — 1— 36.10, U.C.A.19S3 (1969 Pocket Supp.), provides that “Any person seeking to have-a state store located in a restaurant * * * shall file a written application’ with the commission * * *, which shall' be accompanied by * * * the written consent of the local authority * * The term “local authority” is in turn defined by Section 32-1-3 as “The board of county commissioners of the county * * * ” if the premises are in an unincorporated area, i. e., not in a city or town. To effectuate these provisions for Salt Lake County, the County Commission passed an ordinance empowering the Salt Lake County Planning Commission to hear applications for conditional use permits, which if granted would constitute the “written consent of the local authority.”
The county ordinance provides for a different type of review from the action of the Planning Commission granting than from its action denying an application for a permit:
The granting of a permit by the Planning. Commission to dispense alcoholic beverages is subject to review by the-Salt Lake County Commission. The denial of any permit by the Planning Commission * * * is subject to review by the district courts.
In my judgment the proper disposition-of this case depends upon an appreciation. *59•of the predicament the plaintiff is in. Ac* •cording to the ordinance, if the Planning Commission had granted the permit, its action would have been subject to review by 'the County Commission. But inasmuch as 'the application was denied by the Planning Commission, the denial was only “subject to review by the district courts.” Thus, by its ordinance the County Commission has declared that it will not review the action of the Planning Commission which denied her application, hut left the plaintiff no •other alternative than to go to the district court. It is not questioned hut that the •plaintiff should exhaust her administrative remedies. But realistically she had done so because as a practical matter she was at the end of the road of the administrative process. That is, she had no basis upon which to go forward with her application to the State Liquor Control' Commission because she did not have the “consent of the local authorities” as required.
There are no express provisions in the Act for an appeal from the local authorities’ refusal to give consent. Accordingly, the resort to obtain justice for an applicant who believes that her application has been arbitrarily rejected, and who cannot pro•ceed further for administrative remedy, is to seek remedy in the court.1 The plaintiff thus followed the proper procedure both under the law, and in accord with the county ordinance, by seeking redress in this action in the district court.
I observe aside that it is to be conceded, as the main opinion indicates, that the County Commission has no power to confer or regulate jurisdiction of the district court. Its ordinance could be, and should be, ignored in that regard. But it has the effect of declaring that the County Commission will not review the action of the Planning Commission and leaves the applicant (plaintiff) no other avenue or redress than she has pursued. In a plenary trial she was successful in persuading the district court that the Planning Commission acted wrongfully in denying her application. The defendants have appealed that judgment to this court where it has been presented and considered on record, briefs and argument. It is my view: (1) that the parties are entitled to our decision on the appeal, (2) that there is sufficient foundation to support the findings and judgment of the trial court, and that (3) under traditional rules of review there is no basis for reversal of the judgment. I would therefore affirm it and thus leave the way clear for the plaintiff to further pursue her application in the manner provided by law. (All emphasis added.)
. Wycoff Co. v. Public Service Comm., 119 Utah 342, 227 P.2d 323; Uintah Freight Lines v. Public Service Comm., 119 Utah 491, 229 P.2d 675; Pacific Intermtn. Express Co. v. State Tax Comm., 7 Utah 2d 15, 316 P.2d 549; Walker Bank & Trust Co. v. Taylor, 15 Utah 2d 234, 390 P.2d 592.