JOHN A. DUNCAN, as Superintendent of the Department of Liquor Licenses and Control of the State of Arizona, Appellant,
A.R. KRULL COMPANY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. Edward P. Cline, Assistant Attorney General, for Appellant. Mr. Riney B. Salmon and Mr. J. A. Riggins, Jr., for Appellee.
[57 Ariz. 473] ROSS, J.
The Superintendent of the Department of Liquor Licenses and Control for the State, on June 26, 1939, promulgated "Regulation No. 36" reading as follows:
[57 Ariz. 474] "On and after September 1, 1939, no wholesaler or retailer shall sell or otherwise dispose of any beer in the original container, including bottle and can, having a capacity of less than eleven (11) fluid ounces."
On June 29, 1940, the A. R. Krull Company, an Arizona corporation, engaged in selling and distributing beer and other liquors at wholesale throughout Arizona, brought this action against John A.Duncan, as superintendent of such department, to secure a declaratory judgment as to whether the superintendent is, by the provisions of the law creating the Department of Liquor Licenses and Control (sections 72-101 to 72-117, Arizona Code 1939), given the right and power to issue such regulation fixing the minimum fluid content of containers of beer.
Issues were formed and, motion for judgment on the pleadings having been made by plaintiff, the court declared its judgment to be that the superintendent, in promulgating such regulation, exceeded his powers.
From such judgment, the superintendent has appealed.
It appears from the complaint that plaintiff has in stock beer, in containers of eight ounces, which it desires to sell and distribute to the trade but refrains from so doing so long as the legality of the foregoing regulation remains undetermined.
The pertinent provisions of the law are to be found in the following sections:
"72-103. Powers and duties of superintendent. -- (a) The superintendent of liquor licenses and control shall administer and enforce the provisions of this act.
"(b) The superintendent shall have power:
"1. To prescribe necessary rules and regulations: la. for carrying out the provisions of this act; 1b. for the proper conduct of the business to be carried on under each specific type of spirituous liquor license; 1c. to enable and assist state officials to collect all taxes levied or imposed in connection with spirituous [57 Ariz. 475] liquors, and, 1d. to ...