Connecticut Breweries Co. v. Murphy ( 1908 )

Section 2727 of the General Statutes provides that "all contracts, . . . any part of the consideration of which has been the illegal sale of spirituous and intoxicating liquors, shall be void." This section is a part of Title Sixteen, entitled "Intoxicating Liquors." Title Sixteen provides that each town shall determine by legal vote in town meeting whether or not any person shall be licensed to sell liquors in that town (§ 2638); that any license granted in a town which has voted that no person shall be licensed shall be void (§ 2641); that the county commissioners may license, by a writing signed by themselves, suitable persons to sell liquors in suitable places in towns in which such licenses can be legally granted, and upon written application in the manner prescribed (§ 2643); that all spirituous liquors which are intended by the owner or keeper thereof to be sold in violation of law, shall, with the vessels containing such liquors, be a nuisance (§ 2684); that any person who without a license therefor shall sell any spirituous liquors, shall be punished as prescribed (§ 2690). It is evident that the illegal sale mentioned in § 2727 includes every sale of spirituous liquor made by any person without a license therefor. It follows that if the plaintiff, at the time the sales by it were made, was licensed to sell by the county commissioners, by a writing signed by themselves, in accordance with the provisions of § 2643, then the conclusion of the trial court is correct; and if it were not so licensed, the court's conclusion is erroneous. The word "license" is used in the statute to signify the intangible right granted to the licensee, as well as to signify the writing signed by the commissioners, which is the instrument and evidence of that grant. Quinnipiac BrewingCo. v. Hackbarth, 74 Conn. 392, 394, 50 A. 1023. But there is nothing in the statute to indicate the possibility of a grant of this intangible right by the commissioners otherwise than by a writing signed by themselves, in which writing shall be specified the town and the particular building in which the sales licensed are to be made, and the person who is licensed to make them. General Statutes, §§ 2669, 2672, 2673.

The statute authorizes a license to all "suitable persons." The word "person" includes a corporation; the first title of the Revision of 1902 provides that the word "person" as used therein may extend and be applied to corporations (§ 1). It is the common practice of the State for corporations, as well as all other persons, to engage in the business of buying and selling. The buying and selling of liquors in accordance with the regulations of law is a lawful business. Under the provisions of its joint-stock law the State charters corporations for the transaction of any lawful business, except that of a bank, insurance, surety, railroad, gas, electric light, or water company, or of any company which requires the exercise of the right of eminent domain. General Statutes, § 3358. It appears from the record that this plaintiff was incorporated by the State for the purpose of engaging in the business of making and selling malt liquors. There is nothing in the title concerning "Intoxicating Liquors" necessarily inconsistent with the license of a corporation, unless it be § 2712, which provides that every person convicted of a first violation of any of the provisions of the Act shall be punished by a fine, and that such person on every subsequent conviction shall be punished by a fine, or may be punished by imprisonment instead of, or in addition to, the fine. Laws which are applicable alike to natural and artificial persons may and do involve consequences which may, in some instances, differ in their manner of execution. We think that the word "person," as used in this title, extends to corporations, and that the mere fact that the statute gives to the court a discretion, in imposing the penalty for a second offense, to order imprisonment of the offender instead of, or in addition to, the prescribed fine, does not furnish an implication of legislative intent sufficient to overcome the other considerations which show that, in authorizing the license of all persons engaged in the lawful business of selling liquors, the legislature intended what that language naturally and lawfully expresses. Enterprise Brewing Co. v. Grime, 173 Mass. 252,53 N.E. 855.

The plaintiff, therefore, was entitled to a license. If the county commissioners refused that license, either on the ground that they had no power to license a corporation, or on the ground that their power, and their only power, in respect to licensing a corporation, was to license some individual who was a member or officer of the corporation; or on the ground that, notwithstanding the plaintiff was entitled to a license, yet, in their opinion, it was more convenient and equally beneficial to the plaintiff to refuse a license to it and to license some individual who was one of its members or officers, — the plaintiff had full and complete remedy by application to the court to set aside such action as illegal or in excess of the powers of the commissioners.

The situation, then, as presented by the finding of the court, is this: The plaintiff sold liquors upon its premises without a license therefor. It did have a license upon its premises from the county commissioners to John H. McMahon to sell liquors at that place. In licensing John H. McMahon, the county commissioners intended to enable the plaintiff to sell liquors at that place. There is no question of clerical mistake in writing the license; the commissioners intended just what they did write and signed, namely: We do license John H. McMahon to sell, etc.; and this the plaintiff fully understood. The substantial ruling of the court upon which its conclusion is based is this: The commissioners having refused to license the plaintiff, who is entitled to a license, and having licensed John H. McMahon, with the intent that such license should in law operate as a license to the plaintiff and enable the plaintiff to sell liquors without violating the statutes, and the plaintiff having in good faith, without intent to violate any law, sold liquors without any other authority therefore, such sales are not in violation of § 2690, which says that any person who without a license therefore shall sell any liquor shall be punished.

we are constrained to hold this ruling incorrect. The language of the statute is too clear and certain to permit a gloss such as this ruling requires. The only license permitted is one authorized by a writing signed by the commissioners, in which writing the person and place licensed are specified, and in no other way can the intangible right involved in a license be created. A person who does not have a writing signed by the commissioners, in which they license that person to sell, does not have a license for the sale of liquors, and sales by such person are illegal. The requirement that the license shall be in writing, and shall state the name of the licensee, is not a formal one, but one necessary to give effect to several of the important provisions of the Act. The provisions of the Act are arbitrary, in instances harsh and liable to operate inequitably and unjustly. Such liability seems to be a necessary incident to legislation of this character. In one or two instances the Act provides a specific remedy against its harsh operation, but such specific provisions imply a prohibition rather than a permission to the court to alter, on equitable considerations, the clearly expressed operation of the Act in other instances.

The sales by the plaintiff being prohibited and illegal, and constituting a part of the consideration of the contract sued upon, that contract is, by the terms of § 2727, void. This section applies a well-established principle of common law, which the courts must apply notwithstanding the apparent injustice of its operation in a particular case. The reasons for this are clearly stated in the opinion announced by JUDGE LOOMIS inFunk v. Gallivan, 49 Conn. 124, 128.

There is error, the judgment of the Superior Court is reversed and the cause remanded for further proceedings according to law.

In this opinion the other judges concurred.