State Ex Rel. Adams v. Crawford , 99 Conn. 378 ( 1923 )

Three reasons of appeal are pursued: that the court erred in sustaining the demurrer to the plea in abatement; that it erred in ruling that mandamus was the proper remedy for the wrong complained of; and that it erred in holding that the statute was valid.

The demurrer to the plea in abatement was properly sustained. The plea does not allege that any or all of the seven hundred and thirteen other licensees had surrendered their licenses to the county commissioners before this proceeding was instituted; yet by § 2 of the Act the surrender of the license is made a condition precedent to the right to reimbursement. Hence the plea does not show that any of the other licensees had qualified themselves to ask for reimbursement.

But supposing the plea had alleged that all of them had surrendered their licenses, the fact would still remain that the right pursued is purely statutory, and that § 2 requires the commissioners to reimburse each licensee separately. It provides that "upon the surrender of his license" the commissioners "shall reimburse such licensee," etc.; and in each instance the obligation to reimburse accrues upon the surrender of the license, and is proportionate in amount to "the unexpired portion of the license year" — meaning very plainly that portion of the license year unexpired at the date of the surrender of the license.

Moreover, the statute necessarily assumes that the license has not already been forfeited or become forfeit in the hands of the licensee before the surrender. In short, it would still be necessary to examine every case separately on its merits, if all the licensees in the county were joined. Since the statute gives each licensee a separate interest, and the right to pursue it separately, the authorities cited by the respondents have no application.

The court did not err in issuing the writ. The statute is mandatory. It leaves nothing to the discretion of the commissioners. The application for the writ alleges facts upon which it became the statutory duty of the commissioners to pay the relator a fixed sum, and alleges that they refused to pay it. Stateex rel. Bulkeley v. Williams, 68 Conn. 131,35 A. 24, 421, is exactly in point.

It is said that the relator has an adequate remedy at law, because he might obtain a judgment against the commissioners in an action at law. But the remedy at law is inadequate because ineffectual and incomplete. The judgment could not be collected by levy of execution, and could be collected only by mandamus, or by an action on the commissioners' bonds. To avoid circuity of action and because the State is interested in compelling its agents to obey its commands, it is well settled that mandamus will lie to compel the payment of money by public officials when the duty to pay it is plain and the claim is just, undisputed in amount, and based on a clear legal right.State ex rel. Bulkeley v. Williams, supra. For cases applying this rule to a refund of taxes paid, see Henderson v. State, 53 Ind. 60; Eyerly v. Jasper County,72 Iowa 149, 33 N.W. 609; People ex rel. Pells v. Supervisorsof Ulster County, 65 N.Y. 300.

The objections to the validity of the statute are confined on the brief to three propositions: that the statute attempts to divert public funds to a purely private use, that it takes from the counties and towns vested rights of property, and that it is an exercise of the judicial as distinguished from the legislative powers of the State.

The first of these propositions is based on Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030, and it assumes that the statute commands the county commissioners to pay a gratuity out of public funds. That assumption is incorrect, for it is apparent not only from the language of the Act, but from the circumstances surrounding the passage of the Act, that it is not in the nature of a vote of a gratuity, but in the nature of a remission of a tax; and the power of the General Assembly to remit taxes within constitutional limits being unquestionable, the real issue is whether this particular remission is a valid exercise of powers incidental to the taxing power.

There are many cases in which courts have referred the imposition of license fees to the police power rather than the taxing power. Our own rule on the subject has been thus stated: "Where the license fee is imposed solely or primarily for raising revenue, it is the imposition of a tax no matter by what name it may be called." State v. Murphy, 90 Conn. 662, 665, 98 A. 343. See, also, New London v. Howe, 94 Conn. 269,108 A. 529.

Since we are dealing in this case with a statute passed by a legislature which possesses not only the broad power of taxation unrestricted by specific constitutional limitations, but also the police power not specifically restricted save by the Bill of Rights, we need not pursue the distinction between a license fee and a tax any further than to observe that while the regulation of the liquor traffic falls within the police power, the provisions of § 2743 for the distribution of the proceeds of liquor-license fees among the State, the county, and the license towns in the county, show very plainly that the imposition of these particular license fees was in part for revenue and involved an exercise of the taxing power. Nevertheless, the tax was not a general levy upon property, persons, or incomes, but an excise tax upon the privilege of conducting, for a definite term, a business dangerous to the public welfare in which only a few selected persons were permitted to engage upon payment of a very substantial license fee.

The underlying question is whether the General Assembly, in the absence of specific constitutional limitations on its taxing power, might lawfully, by a statute applying generally to all licensees, remit a proportionate fraction of such a tax upon the surrender of the privilege before the expiration of the license. We see no fundamental constitutional objection to such a remission.

It can hardly be doubted that the General Assembly might have provided in the licensing Act itself for a proportionate rebate of the fee paid, upon the surrender of the license before its expiration. The New York liquor-license law contained such a provision and its validity was never questioned, though the provision for rebates came under the scrutiny of the Court of Appeals in People ex rel. Miller v. Lyman,156 N.Y. 407, 50 N.E. 1112. In Hirn v. State, 1 Ohio St. 15, a licensed tavern-keeper was indicted for continuing to sell liquor after the licensing Act had been repealed, and before the term of his license had expired. The theory of the prosecution was that the repeal of the licensing Act operated by implication as a revocation of all licenses outstanding at the date of its repeal, and the court said in sustaining a demurrer to the indictment: "It is not reasonable to presume that the legislature would, after authorizing a license, and allowing the granting of it till a particular period, and after obtaining thereby the payment of many thousands of dollars into the treasury, revoke the license before the expiration of the term for which it was granted, without reimbursement." These cases are not in point, but they are significant because they show that the reimbursement of holders of liquor licenses which have become ineffectual, by surrender or revocation without fault, has been approved by two eminent courts of last resort.

Equitable considerations are not conclusive upon sovereign States, but the fundamental principles of the law, including constitutional law, follow substantially the recognized course of fair dealing. It is true that these liquor licenses did not become ineffectual by any prohibition directly emanating from the General Assembly. Nevertheless, the State had, by its allegiance to the Federal Constitution, assented in advance to the passage of the War-time Prohibition Act, which by that assent became the law of Connecticut. It is also true that the General Assembly was not bound to refund any part of these license fees. But that argument does not support the burden which the respondents have assumed by challenging the constitutionality of the Act. They must go further and point to some fundamental principle of constitutional law which requires the State to retain license fees paid for the privilege of carrying on a business which has become unlawful. They have not done so. Because the licensees had no remedy at the common law, it does not follow that the General Assembly might not recognize its moral obligation as the keeper of the State's conscience, and give them a remedy. We are of opinion that the Act is a constitutional exercise of the power to remit taxes. This conclusion disposes also of the objection that the statute was an exercise of the judicial, as distinguished from the legislative, power.

The contention that the Act deprives the counties and towns of vested property rights was, in principle, answered by the Supreme Court of the United States in East Hartford v. Hartford Bridge Co., 51 U.S. (10 How.) 511, 534. In that case the supposed contract, claimed to have been impaired, related to certain rights in a ferry alleged to have been granted to Hartford and half of it transferred to East Hartford. Subsequently the Hartford Bridge Company was incorporated with power to build a bridge across the river, and the General Assembly passed an Act providing in substance that the ferries should be discontinued and the towns should not thereafter operate them while the bridge was in repair.

The Supreme Court based its conclusion that no contract obligation was impaired, on the broad ground that "the doings of the legislature as to this ferry must be considered rather as public laws than as contracts. They related to public interests. They changed as those interests demanded. The grantees likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the legislature. They are incorporated for public, and not private objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders, nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached and levied on for their debts. Hence, generally, the doings between them and the legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes. It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty, and checking most legislative improvements and amendments, as well as supervision over its subordinate public bodies."

This reasoning seems conclusive. Section 2743, under which the counties and towns received their distributive shares of liquor-license fees, is a public statute and not a contract, and they cannot acquire in public funds allotted to them by public statute, any property right which is inconsistent with the exercise by the legislature of its power to remit taxes and its power to control subordinate agencies of government.

There is no error.

In this opinion the other judges concurred.