Rehearing Denied May 2, 1961.
[88 Ariz. 386] Conner & Jones and James Elliott Dunseath, Tucson, for appellant.
Boyle, Bilby, Thompson & Shoenhair, Tucson, for appellee.
WILLIAM E. KIMBLE, Superior Court Judge.
This is an appeal by Hyman Myerson from a judgment directing that a certain Series Nine Spirituous Liquor License held by Hyman Myerson and Abe Myerson as co-tenants be sold and not equitably partitioned. Appellant assigns as error only that the evidence was not sufficient to support the judgment of the trial court and was contrary to law.
For a number of years prior to 1938, plaintiff and defendant, who are brothers, operated the White House Department Store in Tucson, as a partnership. In July 1938, they purchased a grocery store located at 702 N. Stone Avenue in Tucson, from Ruben Thornton. This store was known as Consumers Market and included a drug department from which packaged liquors were sold under a Series Nine Liquor License issued by the State of Arizona.
There is some conflict as to whether this license was included in the original purchase, or whether it was subsequently obtained by the partners. However, both brothers made the original application for transfer and their interest was shown to be equal. It does appear that the purchase of the license was made with partnership
funds, and that the business was operated on a partnership basis, with the profits from the sale of liquor equally divided until June, 1940, when the partnership was increased to include Joe Myerson, another brother.
No change in the ownership of the liquor license was made at that time, or at any subsequent time. It does appear, however, that the brothers treated the license as a partnership asset, for the profits from the sale of liquor were shared by the three brothers, the renewal fee for the license was paid from partnership earnings, and it was used by the partnership without charge.
In July, 1947, the three partners formed a corporation known as Consumers Market, a corporation. No change of ownership of the license was made, but the corporation paid the annual renewal fees and used the license without charge. Commencing in 1953, the renewal applications reflected interests in the license in the same percentages as the stock interest in the corporation:[88 Ariz. 387] Hyman Myerson, 40%, Abe Myerson, 40%, Joe Myerson, 15% and E. C. Marquis, 5%, and showed the business name of the applicant to be Consumers, Incorporated. The stock of Abe and Joe Myerson was transferred to Hyman on January 15, 1955 and since that date Abe and Joe have had no interest in the corporation.
On September 28, 1956, defendant, as president of Consumers Market, a corporation, made application to the State to transfer the liquor license from the market at 702 N. Stone Avenue to a market at Wilmot Plaza in Tucson. Plaintiff protested at the hearing on the proposed transfer, before the Pima County Board of Supervisors, and on October 24, 1956, filed a complaint in the Pima County Superior Court, alleging that he and the defendant owned the license, and that the defendant was attempting to change the location of the license against the will of the plaintiff and without his consent. Upon this action judgment was rendered as indicated above.
In his briefs appellant cites many examples to support his contention that the license was treated and considered by the parties as a partnership asset until 1947, and that thereafter he held it in trust for the corporation. With this contention we cannot agree regardless of the intention of the parties or the use to which the license was put.
Section 4-202, subd. A, Arizona Revised Statutes, provides:
'Every spirituous liquor licensee, other than a club licensee, shall be a citizen of the United States and a bona fide resident of the state.'
Section 72-106, Arizona Code Annotated, 1939, provided:
'(a) Every spirituous liquor licensee shall be a qualified elector. If a partnership, all members ...