Appeal of Moynihan

• Citation: 75 Conn. 358,53 A. 903
• Parties: Appeal of MOYNIHAN.
• Decision Date: 07 January 1903
• Court: Supreme Court of Connecticut

53 A. 903

75 Conn. 358

Appeal of MOYNIHAN.

Supreme Court of Errors of Connecticut.

Jan. 7, 1903.

Appeal from superior court, Hartford county; John M. Thayer, Judge.

Proceedings by James Moynihan to secure a liquor license. From a dismissal of an appeal to the superior court from the action of the county commissioners in rejecting his application, applicant appeals. Affirmed.

Harry M. Burke, for appellant.

Marcus H. Holcomb and Olin R. Wood, for appellee.

HAMERSLEY, J. The main questions presented by this appeal relate to the appellant's claim that the act (Pub. Acts 1901, c. 183) empowering the county commissioners to reject any application for a license upon finding there already exists in the town or in the vicinity of the place for which a license is asked a sufficient number of licensed places, subject to the right of appeal by the applicant in the same manner as appeals are now taken, is void. The claim is that the appeal thus provided is, in effect, the ordinary process for transferring a cause from an inferior to an appellate court for retrial, and imposes upon the superior court the purely administrative powers and duties of an administrative board, which the court is incompetent to exercise, upon the principle laid down in Appeal of Norwalk St. Ry. Co., 69 Conn. 576, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794, and that the power given to the commissioners is so dependent upon the right of such appeal that the invalidity of that part of the act providing for the appeal Involves the invalidity of the whole act. It is a sufficient answer to this claim that the construction thus given to the provision for an appeal cannot be maintained. It is well settled that the legislature cannot give the superior court appellate jurisdiction of this kind in matters committed to executive officers. In certain instances, where appropriate process is provided, the court may set aside acts of administrative officers for unlawful conduct in excess of their power. Such process for controlling the unlawful conduct of county commissioners in granting or refusing licenses has been provided by the legislature under the name of "appeal." Pub. Acts 1893, c. 175; Pub. Acts 1899, c. 223. The word "appeal," as thus used, has been construed as providing for an original application to the superior court to exercise its appropriate judicial power in respect to acts done by the county commissioners in excess of their power, or in the unlawful abuse of that power. "Such appeal is a process by which the superior court is enabled to determine the legality of certain specified actions of the county commissioners." Appeal of Wakeman, 74 Conn. 315, 50 Atl. 733; Appeal of Norwalk St. Ry. Co., 69 Conn. 600, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794; Appeal of Malmo, 72 Conn. 8, 9, 43 Atl. 485. When the legislature uses the word "appeal" in the act of 1901, it must be held to use it with the same meaning attached to the word in the acts of 1893 and 1899.

This view of the statute disposes of the substantial error claimed by the appellant, but another claim was involved in the argument, which may be stated thus: "In sustaining the legality of the commissioners' conduct, it was not sufficient for the court to satisfy itself that the commissioners acted fairly, honestly, and reasonably in rejecting the application, but it must also be satisfied, upon an original investigation, that it would itself reject the application. This claim is inconsistent with the nature of the application to the superior court authorized by statute. The intervention of the court is based upon some illegal conduct by the commissioners in the execution of purely administrative powers. We said in State v. Wilcox, 42 Conn. 371, 19 Am. Rep. 536, in speaking of our statute as first enacted in 1872, that the granting of licenses and other powers therein contained "are police regulations quite fit and proper to be exercised by municipalities, county commissioners, or boards of selectmen for the protection of the morals and health, and the promotion of the prosperity, of their particular localities." We said in Underwood v. Commissioners, 67 Conn. 416, 35 Atl. 274, that the power and duty to grant licenses conferred and imposed upon the commissioners "are administrative, and not judicial, in their nature." The illegal exercise of this power may be restrained by the court, but the power itself to issue a license in a lawful manner is vested solely in the commissioners. Indeed, the plan and purpose of the legislation regulating the sale of liquors depends upon the supervision given to the commissioners, who for this reason have the sole power to license, but only for the period of a single year. Appeal of Malmo, 72 Conn. 1, 7, 45 Atl. 164. It may be true that the legislature may provide for the issue of licenses by an inferior court upon conditions appropriate to the exercise of its judicial power, but it plainly would be impracticable to accomplish in that way the main objects secured by the present legislation. That treats the issue of licenses as purely administrative, and the question of what limitations might be involved if it were treated as judicial cannot arise. Appeal of Malmo, 72 Conn. 5, 45 Atl. 164.

The questions brought before the court by the application are these: Have the commissioners acted illegally? Have the commissioners exceeded their power or abused their power? All matters to be considered by the court are incident to the examination of these questions. Ordinarily the illegality claimed must consist in a disregard or misunderstanding of the statutory qualifications for a license, or of the limitations upon its issue. These questions arise upon the application as an original process, and may call for an original investigation, and in this qualified sense there may be a hearing de novo in respect to the issue of a license. The statutory qualification most frequently called in question is that which requires the licensee to be a suitable person, and his place of business a suitable place. The word "suitable" may be so used as to involve nothing more than a direction to appoint a proper person, but we held in Appeal of Smith, 65 Conn. 135, 31 Atl. 529, and Appeal of Hopson, 65 Conn. 140, 31 Atl. 531, that the word was not so used in our statute, but was used to define a statutory...