Summary
In Fox v. Blair (D.C.) 20 F.2d 235, the distinction between the function of the Commissioner in cases of revocations of permits and of new applications was pointed out and emphasized. It may be noted that, in cases of new applications, the National Prohibition Act (27 USCA) does not provide for any hearing before the Commissioner at all, though the practice in this district is to hold such hearing after action by the Commissioner refusing the permit, if requested by the applicant.
Summary of this case from Halpern v. AndrewsOpinion
No. 3627.
June 10, 1927.
John W. Crolly, of Philadelphia, Pa., for plaintiff.
George W. Coles, U.S. Atty., of Philadelphia, Pa., for defendants.
In Equity. Suit by William Fox, individually and trading as the Wil-Fox Manufacturing Company, against David H. Blair and others. Bill dismissed.
See, also, 20 F.2d 233.
This is a bill to review the action of the department in refusing a permit to withdraw alcohol. The cause began as a motion for a preliminary injunction. The motion was by consent temporarily held until the department could give a hearing to the applicant and thus make up a record of fact findings. This was followed by insistence upon the order of refusal. The cause was then taken up as upon a review of that order. At the request of the defendants, the case was referred back to the department, so that further evidence might be introduced. There was again insistence upon the order of refusal. The case was then brought back into this court, to be heard as upon final hearing upon the evidence of record. It is high time that the case be brought to a conclusion.
Some time ago there was formulated, with the sanction of all the members of the court, a series of five propositions bearing upon the review of permit orders, revocations, forfeiture proceedings, libels, and search warrant seizures. For the information of the bar and parties interested, these propositions are appended to this opinion, so as to be published.
These propositions relate to procedure. There are other propositions bearing upon the substantive law in cases of permits, which we think should likewise be formulated and made public, with the like sanction of all the members of the court. These propositions have a direct bearing upon the ruling in the instant case and are as follows:
1. The judgments of any tribunal created by law may be classified as judgments rendered in pursuance of its power to make judicial fact findings, based upon the evidence before it, or as rulings based upon a judicial discretion committed to it.
2. In cases of the first class, the action taken on appellate review is determined by the answer to the question of whether the judgment rendered is supported and warranted by the fact findings on which it rests; in cases of the second class, the review is of the mode of exercise of a judicial discretion, in order to determine whether or not there has been an abuse of it.
3. In permit cases (such as that before us), the grant or refusal of a permit is an executive administrative act, performed in the exercise of a quasi judicial discretion committed to the permit authorities. The power given is not an absolute power to grant or refuse a permit, nor one to be arbitrarily or whimsically exercised, but is one whose exercise is to be guided and controlled by a sound and reasonable judicial discretion.
4. The appellate question, on review of an order of permit refusal, is not one wholly of the correctness of the fact findings made from the evidence, but one of whether there has been an abuse of judicial discretion in the judgment of refusal. The rule is akin to that applied in the appellate review of the judgments of a trial court entered in pursuance of the exercise of a judicial discretion committed to it.
5. An order of revocation of a permit can be made only after a finding following the citation, as prescribed by the act of Congress. The review in such cases is of a fact finding made under all the evidence, and the review of it follows the analogue of the appellate review of a finding made by any trier of the facts.
Discussion.
The special features of this particular case were fully discussed on the motion for a preliminary injunction ([D.C.] 20 F.[2d] 233), to which we see no occasion to add anything.
Conclusion.
The conclusion reached is that there has been no abuse of the discretionary power committed to the permit authorities.
The bill is accordingly dismissed.