Morris v. Torch Club, Inc.

George Rose Smith, Justice. The question that must eventually be decided in this case is whether Section 10 of Act 132 of 1969, Ark. Stat. Ann. § 48-1410 (Repl. 1977), which permits the serving of alcoholic beverages in private clubs in “dry” counties, is invalid because it actually amended an initiated act prohibiting the sale of liquor in a dry county, § 48-802, without receiving the two-thirds legislative vote that is required for the amendment of an initiated act. Ark. Const., Amendment 7. The trial judge compared the language of the private-club statute with the earlier initiated act and held that the one did not amend the other. We reverse and remand, because the true meaning and practical effect of the private-club statute cannot be understood or determined without the development of pertinent areas of fact. See Ark. Motor Vehicle Commn. v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W.2d 453 (1982). This case is a sequel to Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977), where we held that the question now at issue could not be raised in an action for a writ of mandamus to compel the Alcoholic Beverage Control Board to cancel all private-club permits. We said, however, that other procedures were available to the plaintiffs, “the most obvious” being an action for a declaratory judgment. The appellants, as citizens and taxpayers in a dry county, then brought this action for a judgment declaring the private-club statute to be invalid. Among the defendants are the director and the members of the Alcoholic Beverage Control Board and various representative private clubs, including country clubs, a recreation club, an American Legion post, a private club in a Holiday Inn motel, and others. In a case of this kind, in which the rival parties are in effect acting for the general public, it is our practice to be sure that all essential contentions are considered on their merits. See Chandler v. Board of Trustees of the Teacher Retirement System, 236 Ark. 256, 365 S.W.2d 447 (1963). Turning to the statutes, the initiated act prohibits the sale of intoxicating liquor in a dry county. § 48-802. The private-club statute provides that the preparation and serving of alcoholic beverages in a private club “under a so-called ‘locker,’ ‘pool,’ or ‘revolving fund’ system” shall not be deemed to be a sale or to be in violation of law. § 48-1410 (a). The section also provides for the issuance of private-club permits under rules and regulations of the Control Board. Such regulations have been issued, but their language is so general that it is impossible to tell what a pool or revolving fund system really is, nor are we aware of any recognized exact meaning for those terms. (The regulations do say that a locker system is one in which all controlled beverages on the premises are owned by the members individually, but every one of the private clubs has elected to operate on the pool or revolving fund system rather than on the locker system.) It is a familiar rule of law that in the construction of a statute the manner in which it has long been interpreted by executive and administrative officers is to be given consideration and will not be disregarded by the courts unless it is clearly wrong. Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S.W.2d 64 (1942). The private-club statute has been on the books for almost fourteen years. Regulations and scores of permits have been issued under the statute. Thus there is available an abundance of facts to show whether the statute, as interpreted pursuant to the legislature’s direction, is in practice an amendment of the initiated act. It is possible that private clubs may operate within the law, for the initiated act does not prohibit the possession or consumption of intoxicating beverages in a dry county. Some of the appellees, however, concede that it is also possible for a private club to operate in violation of the initiated act. It is totally impossible for us to say, without knowing the facts, whether violations of the initiated act in truth exist. The appellants sought to introduce such proof, but the trial court ruled that “facts relating to the method by which the named defendants’ clubs conduct their business and the methodology employed by the Alcoholic Beverage Control Board in deciding whether or not a permit should be issued . . . for a Private Club Permit are . . . beyond the scope of this litigation.” That ruling was wrong; those issues must be opened to examination. We are not attempting to act as a law enforcement agency. To the contrary, we are merely seeking to determine whether the Alcoholic Beverage Control Board, by the issuance of private-club permits, is giving the appearance of legality to establishments that are not within the permissible scope of the 1969 statute. Reversed and remanded. Adkisson, C.J., and Holt, Purtle, and Dudley, JJ., not participating. Special Justice Eldon F. Coffman joins in this opinion. Special Chief Justice Morris S. Arnold and Special Justices W. P. Switzer and Theodore C. Skokos, dissent.