Malmo's Appeal From County Commissioners

The legislature may regulate, even to the extent of prohibition, any business in its nature injurious to the public. Whether the public injury is such as to require absolute prohibition, or permission on terms fixed by the legislature, as well as the appropriate nature of such terms, are questions in most cases within the power of the legislature to settle. State v. Conlon, 65 Conn. 478, 484.

The Prohibition Act of 1854 was based on a legislative finding that the sale of intoxicating liquors as a beverage was so injurious to the public as to justify its absolute prohibition. This court sustained the power of the legislature to make that finding. State v. Wheeler, 25 Conn. 290, 292. Such power has also been sustained by the courts in other jurisdictions. The License Act of 1872 was based on the same legislative finding; but that Act with its various amendments vested in towns the power to modify the absolute restriction within their limits, and in selectmen and county commissioners (subsequently in county commissioners) the power to remove the restriction as to any person within the territorial limits of towns which had exercised the power thus given them.

The legislature may validly vest in towns and administrative boards this power of continuing or removing, as to localities and persons, its general absolute prohibition to carry on this dangerous business. State v. Wilcox, 42 Conn. 364,370, et seq.

The power of selection for appointment, or of refusing to remove the general prohibition as to any person (whether possessing the statutory qualifications or not), was not imposed upon the Superior Court by the Act of 1893 allowing appeals.

It is obvious that the Appeal Act of 1893 operated in a very different way in a case where a license had been granted, from that in one where a license had been refused. The License Act delegated to county commissioners the power of selecting the persons as to whom the restriction could be safely removed (nothing but the inherent danger of the business could justify such a delegation), but it forbade the exercise of this power unless certain statutory qualifications existed; at first the single one of "suitableness," and subsequently a number of specific qualifications. The selection of a person not possessing these qualifications was, therefore, illegal. The Appeal Act of 1893 furnished a judicial process for setting aside this illegal action. Upon the finding of the illegality, the invalidity of the action was established; it was thereby adjudged that the county commissioners had no power to select that person. On the other hand, a refusal to grant a license could not be illegal, unless it were based wholly on an erroneous finding that the applicant did not possess the statutory qualifications; by means of the appeal process the Superior Court might set aside the action wholly based on such illegal finding; but a judgment of that nature could not affect the power of the county commissioners to refuse a license, as in the case of an appeal by a taxpayer it did affect their power to grant. The judgment simply removed the legal objections which were the sole basis of the refusal, and it then became the duty of the commissioners to act on the application as one wholly free from any legal limitation upon their power to grant.

In Malmo's Appeal, 72 Conn. 1, 10, it was claimed that the appeal Act of 1893 changed the existing law so as to deprive the county commissioners of their power of selection, and compelled them to license whoever came within the statutory qualifications; but we held that the Act did not have such effect, and said: "The legislature may alter the law and give to every citizen a legal right, upon complying with prescribed conditions, to a license to sell intoxicating liquors; but such alteration would involve the abandonment of a main principle underlying the present legislation, and cannot be inferred from the Act of 1893 authorizing appeals." After this decision was announced "An Act concerning Appeals from County Commissioners" was passed (Public Acts of 1899, p. 1138),^* under which the present application is brought. By the terms of that Act (among other things) the county commissioners are specifically commanded to issue a license whenever the Superior Court, upon an appeal from their refusal, shall decide that the applicant and his place of business are suitable. (By an apparent oversight this duty is imposed, notwithstanding other statutory qualifications may be wanting.) It is apparent from a careful study of the Act in all its bearings, that the legislature intended the natural consequences of the language used, that is, to abandon a main principle underlying the existing legislation, by giving to every person in "license" towns, who can bring himself within the statutory qualifications, the legal right to a license to sell liquors. Consequently the county commissioners no longer have the power to refuse a license on any consideration whatever, if the statutory qualifications exist.

It was suggested in argument that the power of selection, finally vested in the commissioners, was given by the Act of 1899 to the Superior Court. The suggestion is based on the claim that the Act of 1899 requires the court, on appeal, to make a finding "whether too many saloons are already in the locality." We think the statute may reasonably be treated as not imposing such a duty on the court. To divide the license towns of the state into arbitrary "localities," and to determine from time to time what number of licenses may safely be granted in each locality, is a duty that may be satisfactorily performed by an administrative board to whom is entrusted the duty and power of administering the police regulations of the license law; but it is undeniably a duty which the Superior Court is wholly unfitted to perform, even if it could be validly authorized. The Act of 1899 does not therefore attempt to vest in the Superior Court the power of selection which it takes from the county commissioners; it simply eliminates that power from the license law. Such a change may not unnaturally follow the strong element of revenue legislation which has latterly been brought into the Act; but there is no occasion to discuss the reason for the change, or its wisdom; such questions were settled by the legislature when it passed the law.

It follows that in this case, upon finding the applicant and his proposed place of business to be within the statutory requirements, the trial court properly adjudged the action of the county commissioners in refusing a license to be illegal, and that the applicant is entitled as of right to a license. There was no error in rendering that judgment.

The statute also provides that such judgment shall be transmitted by the clerk of the court to the county commissioners, and that they shall thereupon issue a license to the applicant; it does not provide for any special order to that effect by the court. It assumes that the commissioners will perform their specific legal duty thus finally determined, and will not wait to be compelled and punished by mandamus. If, then, the judgment contained as claimed, a specific order of court directing the commissioners to forthwith issue a license, such order would be void. Upon this point the meaning of the statute is unmistakable. But such void order would not necessarily affect the validity of the rest of the judgment from which it is entirely separable, unless upon a writ of error. We do not think however the judgment should be construed as claimed; while its language may be susceptible of such an interpretation, the inference is not compulsory. There is always a presumption that the court has not made a void order, which, if not inconsistent with the language used, must prevail; especially is this true in a proceeding so peculiar to itself and so informal as this. The error assigned in ordering the commissioners to issue a license is not well taken.

The errors claimed as to the conduct of the court in the admission of testimony, and in reaching its conclusion as to suitability of place, cannot be considered. The reference cited from Smith's Appeal, 65 Conn. 135, 137, to a possible error in an impossible finding, was not intended to intimate but to exclude a ruling; had there been a ruling such as claimed, it would not apply to the facts of this case. As was said in Hopson's Appeal, 65 Conn. 140, 149, "an appeal assigning only such errors must be dismissed, and may be dismissed on motion."

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

In this opinion the other judges concurred.