Appeal of Holley

Decision Date04 October 1929
Citation147 A. 300,110 Conn. 80
CourtConnecticut Supreme Court

Appeal from Superior Court, Fairfield County; Edwin C. Dickenson Judge.

Application by Closson P. Holley to Anthony Sunderland, Mayor of Danbury for certificate of approval of certain land for sale of gasoline and other products used in motor vehicles. From a judgment of the superior court, dismissing appeal from decision of Mayor denying application, applicant appeals. No error.

Petitioner having invoked remedy under statute, and not raised unconstitutionality thereof in original proceeding, nor on appeal, except in argument, unconstitutionality was not presented for consideration. Pub.Acts 1927, c. 245.

Leonard McMahon, of Danbury, for appellant.

J Moss Ives, of Danbury, and William H. Comley, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.


Holley's appeal is from the denial of his application for a certificate of approval of a location for the sale of gasoline and other motor vehicle products, as provided for by chapter 245 of the Public Acts of 1927. His appeal alleges that the location is a suitable one for such purposes and conforms in all respects to the requirements of law, that he is aggrieved by the denial of his application, and that in denying him such certificate of approval the mayor exceeded and abused the power and authority vested in him, and acted arbitrarily and illegally, and has deprived him of the right to use his property in a reasonable and lawful manner.

The finding shows that the mayor, on due notice, held a hearing upon this application, at which all parties in interest were given full opportunity to be heard and thereafter denied the application; that at the hearing evidence was introduced tending to show that, by reason of traffic conditions at the place and in the neighborhood of the proposed location, there would be serious danger to the traveling public, and that the proposed location was not a suitable one for the purpose described in the application.

The trial court reached the following conclusions: that the mayor did not act arbitrarily or illegally, or exceed or abuse his authority, and that no evidence was adduced that showed that the mayor's conclusion was arbitrary, or illegal, or even unreasonable or illogical. An appeal from an administrative act, such as is involved in action taken upon an application under this statute, as we have recently pointed out in DeFlumeri v. Sunderland, 109 Conn. 583, 145 A. 48, is not a transfer of jurisdiction from the administrative body or official to a court, and does not require the court on appeal to retry the case de novo, for the purpose of determining whether it shall substitute its findings and conclusions for that of the administrative body or official, but is merely a process to determine whether the body or official has acted arbitrarily, or illegally, or has acted so unreasonably as to have abused its or his discretion. Moynihan's Appeal, 75 Conn. 358, 53 A. 903. Upon such an appeal the court does not make a determination upon its own independent judgment as to both law and fact, as counsel for Holley contends. Our practice is too well established to require more than its restatement. The controlling questions upon this appeal, as was true upon the appeal in DeFlumeri v. Sunderland, supra, are whether the mayor acted illegally or arbitrarily, or abused his discretion.

The correction of the finding, by adding paragraphs 36 to 44 of the draft finding, inclusive, showing the facts surrounding the granting of a certificate of approval by Mayor Sunderland, was denied. Facts of that nature in a different case were wholly irrelevant in this action, and should not have been received in evidence. Other corrections of the finding, made a part of the reasons of appeal, are either not of sufficient consequence to affect the questions of law involved, or are paragraphs of the finding which are conclusions comprising claims of law, or conclusions drawn from the finding which are embraced in the claims of law, made on the trial, and also made a part of the reasons of appeal. To determine whether the mayor has acted arbitrarily, or illegally, or so unreasonably as to have abused his discretion, the superior court on appeal necessarily must hear the relevant and material facts under the application and the pleadings thereto. Farrell's Appeal, 85 Conn. 701, 703, 84 A. 102.

In a related administrative appeal from the action of county commissioners in granting a removal permit to a retail liquor dealer we said: " Counsel for the applicant urge that the court erred in entering upon a trial of the issue of suitability entirely independently of what was before the commissioners, and did not confine itself to a review of their action in the light of what was before them, thus, in effect, as they say, hearing the application de novo. The course the court...

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35 cases
  • Spector Motor Service v. Walsh
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 18, 1944
    ...and cannot at the same time challenge its legality. In addition to the Lawler case cited by the district court are Holley v. Sunderland, 110 Conn. 80, 86, 147 A. 300, 302; Young v. West Hartford, 111 Conn. 27, 149 A. 205, 207; Coombs v. Larson, 112 Conn. 236, 246, 152 A. 297; Chudnov v. Boa......
  • Florentine v. Town of Darien
    • United States
    • Connecticut Supreme Court
    • June 7, 1955
    ...provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality. Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300; Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462. 5 This rule would have no application to an independent pro......
  • Spector Motor Serv. Inc. v. Walsh.
    • United States
    • Connecticut Supreme Court
    • July 21, 1948 cannot appeal under a particular statute and in that appeal attack the constitutionality of the law, the case of Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300, is cited as supporting the rule, and it is then said that in the later case of Connecticut Baptist Convention v. McCarthy,......
  • State v. Doe
    • United States
    • Connecticut Supreme Court
    • February 6, 1962
    ...administrative officer or agency. See cases such as Norton v. Shore Line Electric Ry. Co., 84 Conn. 24, 32, 78 A. 587; Holley v. Sunderland, 110 Conn. 80, 83, 147 A. 300; Beaverdale Memorial Park Inc. v. Danaher, 127 Conn. 175, 182, 15 A.2d 17; Dempsey v. Tynan, 143 Conn. 202, 206, 120 A.2d......
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