Burns' Appeal , 76 Conn. 395 ( 1904 )

This proceeding, under the name of appeal, is an application to the Superior Court under § 2660 of the General Statutes, for the purpose of vacating a license to sell spirituous and intoxicating liquors, because, in granting the license to a person not having the statutory qualifications for a licensee, the county commissioners acted illegally and beyond their power.

It is claimed that the licensee is not a suitable person, and that his place of business is not a suitable place. The statute requires these qualifications, and the county commissioners have no power to license a person who does not possess them.

This proceeding, although distinct from, is similar in practical effect to, that provided when the county commissioners unlawfully refuse to grant a license; except when this latter proceeding is based on the alleged misconduct of the commissioners in exercising the power vested in them in certain cases by § 2645, of rejecting an application for a license by a duly qualified person. Moynihan's Appeal,75 Conn. 358.

Under either proceeding a judge of the Superior Court, exercising the judicial power, is called upon to form an opinion and make a finding as to the possession, by all applicant, of the statutory qualification of suitability of person and place, for the purpose of determining whether or not the action of the commissioners is within their power as limited by the legislature.

To affirm illegality in the action of the commissioners on such ground, the possession or nonpossession of the statutory qualifications should appear to the court to be clear.

The proceeding is summary, informal, and distinct from an ordinary civil action, which involves a judicial contention between parties in the establishment of their respective rights.

The finding of the judge as to the existence of the qualification of suitableness, necessarily involves a judicial discretion in reaching his conclusion, as well as in directing the production of evidence to aid him in reaching that conclusion.

These propositions have been settled by former decisions and are not open to further discussion. Hopson's Appeal,65 Conn. 140, 147; Malmo's Appeal, 72 id. 1, 6, 73 id. 232, 234; Wakeman's Appeal, 74 id. 313, 315, 316; Moynihan'sAppeal, 75 id. 358, 363.

In this case the trial judge found that the person licensed possessed the qualification of suitability of person and place.

The appellant claims that it appeared to the court that the place of business of the licensee was in a hotel, adapted chiefly to summer business and substantially without patronage during portions of the year; that it was impracticable for a place thus situated to conform to the requirements of the screen law; and that these facts were in law conclusive evidence of the unsuitability of the place.

The claim is unfounded. Such facts can only influence, they do not necessarily control, the judgment of the trier.

The appellant further claims that it appeared to the court that in his application for a license, the applicant did not state, unless by implication, that he was the proprietor of the hotel where his business was to be conducted; that this defective statement was a violation of § 2675 of the General Statutes and rendered void the license which was issued after full hearing and knowledge of the facts. The section does not have that effect.

In excluding the question put to the witness Clark, calling for his opinion as to the suitability of the licensee and his place of business, the trial judge used his discretion in respect to the source and extent of information deemed necessary or desirable, under the circumstances of that case, to a fair exercise of his own judgment and formation of his own opinion. It does not appear that then or at any time he refused to listen to evidence of facts so inconsistent with the suitability of person or place as to show any illegal action on the part of the county commissioners.

Upon the hearing the trial judge ordered the appellant to file written reasons of appeal, and permitted a demurrer to these reasons, an answer and substituted answer, demurrer to substituted answer, reply and substituted reply to substituted answer, and rejoinder. Doubtless the court might properly direct the appellant to state the grounds of illegality on which he relied, orally or in writing, but the proceeding is not one which calls for formal pleadings, nor is it within the purview of the rules regulating pleadings under the Practice Act; and any attempt to improvise, for such hearing, rules of procedure, must prove unfortunate.

In spite, however, of this mode of conducting a summary and informal hearing, it is apparent that the court did determine the question of suitability in view of all the substantial claims urged by the appellant, and, upon evidence it deemed sufficient and satisfactory, reached the conclusion that the licensee was a suitable person and his place of business a suitable place.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.