Opinion
No. 40483.
April 22, 1957.
1. Constitutional law — beer and wines — zoning — statutes authorizing Boards of Supervisors to make rules and regulations as to territories in which beer and wines may be sold outside municipalities — constitutional.
The code sections authorizing County Boards of Supervisors to make rules and regulations as to territories in which wines and beer may be sold outside municipalities and providing that nothing therein shall prohibit Board from designating in what territory surrounding churches and schools outside municipalities such beverages shall not be sold are constitutional and Board may prohibit sale of beer and light wines within specified zone by order reasonably based on facts and conditions warranting it. Secs. 10224, 10228, Code 1942.
2. Zoning — Board of Supervisors — statutory power to prohibit sale of beer and wines in territory outside municipalities — not limited to territory surrounding churches and schools.
The statutory power of Board of Supervisors to prohibit sale of beer and light wines in territory outside municipalities is not limited to territory surrounding churches and schools by provision of statute that nothing therein shall prohibit Board from designating in what territory surrounding churches and schools outside any municipality such beverages shall not be sold. Secs. 10224, 10228, Code 1942.
3. Beer and wine — zoning — Board of Supervisors — discretion in determining reasonableness of order.
Statutes referred to in Headnote 1 vest in Board of Supervisors rather wide discretion in determining reasonableness of order prohibiting or restricting sale of beer within named territory. Secs. 10224, 10228, Code 1942.
4. Board of Supervisors — beer and wines — zoning — passage of order by Board — legislative action delegated to it by statute.
Passage of order by Board of Supervisors, prohibiting sale of beer or wine or prescribing hours within which it may be sold, is legislative action of Board under powers delegated to it by statutes. Secs. 10224, 10228, Code 1942.
5. Appeal — question on appeal from order of Board denying petition to set aside its order prohibiting sale of beer and wines in limited area.
On appeal from order of Board of Supervisors, denying petition to set aside its order prohibiting sale of beer and light wines in limited area, question is whether order is reasonable and proper under facts disclosed before Board, that is, whether its decision is supported by substantial evidence or is arbitrary or capricious or beyond Board's power to make or whether it violates any constitutional right of complaining party. Secs. 1195, 10224, 10228, Code 1942.
6. Supreme Court — evidence — judicial notice.
The Supreme Court judicially knows that communities of Petal and Harvey in Forrest County are only a few miles northeast of City of Hattiesburg.
7. Zoning — order of Board prohibiting sale of beer and wines in limited area — not invalid as unreasonable, arbitrary or capricious.
An order of Board of Supervisors, prohibiting sale of beer and light wines in limited area of two heavily populated unincorporated communities without substantial police protection, only a few miles from a city, after being advised by sheriff that order was necessary in interest of adequate law enforcement, was not invalid as unreasonable, arbitrary or capricious. Secs. 10224, 10228, Code 1942.
8. Board of Supervisors — beer and wines — zoning — notice and hearing — not a prerequisite to Board's order prohibiting sale of beer and wines in limited area.
Board of Supervisors was not bound to give notice and hold hearing before making order prohibiting sale of beer and light wines in limited area of certain communities; passage of order being exercise of board's legislative power, not a judicial function. Secs. 10224, 10228, Code 1942.
9. Licenses — beer and wines — license to sell not a vested property right but a revocable permit or alienable privilege.
A license to sell beer and light wines is not a vested property right, but simply a revocable permit or alienable privilege with reference to a business peculiarly affecting public interest and subject to governmental regulation.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Forrest County; FRANCIS T. ZACHERY, Judge.
J. Homer Pittman, Ben Stevens, Chester M. Morgan, Jr., Hattiesburg; L. Barrett Jones, Jackson, for appellant.
I. The zoning ordinance adopted by the Board on June 17, 1954, zoning the area East of the railroad right-of-way, was a final judgment or zoning ordinance, from which no appeal had been prosecuted by anyone.
II. The Board of Supervisors was without authority to amend, change, alter, or modify any former order of the Board, and particularly the zoning ordinance of June 17, 1954.
III. Any attempt to include any additional territory such as that territory West of the railroad right-of-way and adjacent to the unincorporated Community of Petal, as well as the additional territory of the Community of Harvey, would have to be instituted upon a new petition therefor and a public hearing granted.
IV. The order of the Board of June 17, 1954, was judicial in character.
V. The order of the Board of September 6, 1956, was judicial in nature and was adopted by the Board without any petition therefor, and without due process of law upon anyone.
VI. The order of the Board of September 6, 1956, was without foundation and was capricious, unreasonable, arbitrary and without any necessity therefor.
VII. The additional territory West of the railroad right-of-way is solely a commercial district of Forrest County, Mississippi.
VIII. Said purported order of the Board of September 6, 1956, resulted in a destruction of the livelihood of the appellant and of his business, without any legal opportunity for a hearing.
Collation of authorities: Keenan v. Harkins, 82 Miss. 709, 35 So. 177; Martin v. Newell, 198 Miss. 809, 23 So.2d 796; Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Martin v. Board of Suprs. Winston County, 181 Miss. 363, 178 So. 315; Tallahatchie Drainage Dist. v. Yacona-Tallahatchie Drainage Dist., 148 Miss. 182, 114 So. 264; King v. City of Louisville, 207 Miss. 612, 42 So.2d 813; Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717; City of Jackson v. McPherson, 162 Miss. 164, 138 So. 604; Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130; Board of Suprs. Clay County v. McCormick, 207 Miss. 216, 42 So.2d 177; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Wright v. Edwards Hotel, 101 Miss. 470, 58 So. 332; Ford v. Easterling, 183 Miss. 575, 184 So. 153; LeBlanc v. Illinois Cent. RR. Co., 73 Miss. 463, 19 So. 211; Secs. 3597, 10224, Code 1942.
Gray Montague, Hattiesburg, for appellee.
I. Appellee, in passing and adopting both said original order of June 17, 1954, and said modifying and amending order of September 6, 1956, acted in a legislative, as distinguished from judicial, capacity, under lawful and valid delegation of authority from the Legislature; and both of said orders, being legislative in nature and character, represent valid and authorized acts of appellee, and said order of June 17, 1954, was subject to modification and amendment by said order of September 6, 1956. Ford v. Easterling, 183 Miss. 575, 184 So. 153; Board of Suprs. Clay County v. McCormick, 207 Miss. 216, 42 So.2d 177.
II. There being no question of due process involved herein, because appellant possessed only a license or permit and not a vested property right, appellant has not been denied his property or property rights without due process of law, when, as contended by him, no petition was filed, no notice was given and no hearing was held by said appellee prior to entry of said order of September 6, 1956. Ford v. Easterling, supra; Board of Suprs. Clay County v. McCormick, supra; Martin v. Board of Suprs. Winston County, 181 Miss. 363, 178 So. 315; Stone v. Farish, 199 Miss. 186, 23 So.2d 911; Secs. 10207, 10211, 10224, Code 1942.
III. Appellee's said order of September 6, 1956, is not capricious, unreasonable or arbitrary; but, instead, represents a reasonable and necessary exercise of the legislative power properly delegated to and vested in appellee. Board of Suprs. Clay County v. McCormick, supra; Cobb Bros. Constr. Co. v. Gulf Mobile Ohio RR. Co., 213 Miss. 706, 57 So.2d 570; Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Monroe County v. Strong, 78 Miss. 565, 29 So. 530.
IV. The evidence excluded by appellee at the hearing of September 27, 1956, held before it was properly excluded; but, if not, the Court below was correct in holding that the exclusion of such evidence was a harmless error and not grounds for reversal.
This is an appeal by bill of exceptions from an order of the Board of Supervisors of Forrest County of September 27, 1956, denying a petition to set aside an order prohibiting the sale of beer and light wines in a limited area of the Petal and Harvey communities of Forrest County, in which appellant Miller operates a restaurant. Code of 1942, Sec. 1195. The circuit court correctly affirmed the board's order.
Code Section 10224 provides: "Municipalities may enforce such proper rules and regulations for fixing zones and territories, prescribing hours of opening and of closing, and for such other measures as will promote public health, morals, and safety, as they may by ordinance provide, and the board of supervisors of any county may make such rules and regulations as to territory outside of municipalities as are herein provided for municipalities."
Code Section 10228 states: ". . . nothing in this Act shall prohibit the governing body of any municipality from designating what territory surrounding churches and schools in said municipalities, and the board of supervisors of any county from designating what territory surrounding churches and schools outside of any municipality, in which said wines and beer shall not be sold or consumed."
(Hn 1) These statutes first went into effect in Mississippi Laws 1934, Chapter 171. They are constitutional, and a board of supervisors may prohibit the sale of beer and light wines within a named zone, provided the board's order is reasonably based upon facts and conditions warranting it. Alexander v. Graves, 178 Miss. 583, 173 So. 417 (1937). (Hn 2) The power to prohibit is not limited to territory surrounding churches and schools. Alexander v. Graves, supra. (Hn 3) The court has recognized that these statutes vest in boards of supervisors a rather wide discretion in determing the reasonableness of an order prohibiting or restricting the sale of beer within a named territory. Ford v. Easterling, 183 Miss. 575, 184 So. 153, 119 A.L.R. 634 (1938); Walters v. Jones Co., 184 So. 160 (Miss. 1938). On the other hand, orders prohibiting the sale of beer in an entire school district, and in another case, within five miles of any church, school, storehouse, filling station, or other public place, were held to be unreasonable and without any substantial basis of fact relevant to the powers of the board. Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130 (1942); State v. Hoyle, 51 So.2d 730 (Miss. 1951). See also Holmes v. Board of Supervisors of Forrest County, 199 Miss. 363, 24 So.2d 867 (1946). (Writ of prohibition against board and sheriff does not lie.)
(Hn 4) Furthermore, the passage of an order prohibiting the sale of beer or prescribing the hours within which it might be sold is a legislative action of the board of supervisors under powers delegated to it by Code Sections 10224 and 10228. (Hn 5) On appeal the question is whether the order is reasonable and proper according to the facts disclosed before the board, that is, whether or not its decision is supported by substantial evidence, or is arbitrary or capricious, or beyond the power of the board to make, or whether it violates any constitutional right of the complaining party. Board of Supervisors of Clay County v. McCormick, 207 Miss. 216, 42 So.2d 177 (1949).
The record before the board, including the recitations of its order, the bill of exceptions, stipulations, the map, and the aerial photographs of the affected territory, amply support validity of the board's order. In June 1954 the board of supervisors passed an order which adjudicated that the unincorporated community of Petal contained five to six thousand people residing in the immediate environs, without substantial police protection; that it was substantially residential in character, and contained churches and a large consolidated school; and it was necessary for the public welfare, health, morals, and safety to prohibit the sale of light wines and beer within a described area embraced in a circle with a diameter of two miles, the center of that circle being the intersection of two streets in the Petal Community, but excepting from such circle the land which lies west of the New Orleans and Northeastern Railroad. The order prohibited sales of beer and light wines in the described area. The excepted territory was divided from the zoned area by a rather high embankment of the railroad. Immediately to the west of the railroad is U.S. Highway 11, a heavily traveled thoroughfare. There are a large number of businesses and industries adjacent to the highway immediately to the west of the territory covered in the 1954 order.
On September 6, 1956, without any public notice or hearing, the board of supervisors made another order modifying and amending the 1954 order and extending the prohibition of beer and light wine sales to the remainder of the land within the circle described in a 1954 order but excepted from its effect. The 1956 order, which is the one here in issue, contains a finding by the board of supervisors that it had carefully inquired into the matter of the need for prohibiting sales in the additional territory; that the area bordering the zone covered by the 1954 order and to the west of it within the circle has heavily increased in population, and population of entire area has increased to a total of 7,500 to 10,000; that the territory encompasses substantially all of the unincorporated communities of Petal and Harvey, which are without substantial police protection; and that the public welfare, health, morals, safety and public interest would be best served by excluding beer and light wine sales in the area to the west of the railroad but within the circle. Hence such sales were prohibited.
On September 27, appellant Ralph E. Miller filed with the board a petition attacking the reasonableness of the order and its validity. In the area west of the railroad, which is affected by the 1956 order, Miller operated a restaurant known as the M O Drive In, and in connection with the business he sold beer. His petition alleged that the board's order would put him out of business and deprive him of his right to a livelihood. Hence Miller's petition asked the board to rescind its order of September 6. The board denied that petition on September 27, 1956. From this order Miller appealed to the circuit court and to this Court.
(Hn 6) In determining the reasonableness of the order, we must consider the findings of fact by the board, as well as all other evidence reflected in the record. We judicially know that the communities of Petal and Harvey are only a few miles northeast of the City of Hattiesburg. (Hn 7) The zoned area contains a large population without any substantial police protection. Before passing the September 6 order the board was advised by the sheriff that it was necessary in the interests of adequate law enforcement. The board found that the existence of U.S. Highway No. 11 in this heavily settled area, and the resulting problems of law enforcement, rendered it reasonable and proper to prohibit such sales, in order to furnish adequate police protection to this restricted area of the county, and in order to promote the public welfare, health, safety and morals. Under these circumstances, it cannot be said that the order is unreasonable, arbitrary or capricious. The location of the zoned area and the existence in it of two heavily populated unincorporated communities, along with the other facts, furnished an adequate basis for action under Sections 10224 and 10228.
(Hn 8) It was not necessary for the board of supervisors to give a notice and hearing prior to making the zoning order of September 6. This is not required by the statutes, which in fact indicate a contrary intent. In Board of Supervisors of Clay County v. McCormick, supra, no petition was filed with the board requesting a zoning order, which was passed without any notice or hearing. Nevertheless, it was held to be an exercise of the board's legislative power, and not a judicial function. The same conclusion applies here. (Hn 9) Moreover, appellant has no vested property right in a license to sell beer and light wines. It is simply a revocable permit or alienable privilege, with reference to a business which has long been recognized as peculiarly affecting the public interest and subject to governmental regulation. Stone v. Farish, 199 Miss. 186, 23 So.2d 911 (1945).
Affirmed.
McGehee, C.J., and Lee, Arrington and Gillespie, JJ., concur.