Bania v. Town of New Hartford

Decision Date31 July 1951
Citation83 A.2d 165,138 Conn. 172
CourtConnecticut Supreme Court
PartiesBANIA v. TOWN OF NEW HARTFORD. Supreme Court of Errors of Connecticut

Louis Shapiro, Unionville, for the appellant (plaintiff).

H. Roger Jones, Winsted, for the appellee (defendant).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

This is an action for a declaratory judgment determining whether the plaintiff has a right under his restaurant liquor permit to sell liquor on his premises in New Hartford on Sunday. The case was submitted to the trial court upon a stipulation of facts. The court rendered judgment for the defendant, denying the plaintiff's claimed right and incidental contentions. The plaintiff has appealed.

The court's decision involved a determination of the effect to be accorded the action taken by certain meetings of the defendant town pursuant to § 979e of the 1939 Supplement to the General Statutes and amending statutes. The statute as amended, Sup.1949, § 438a, provides that Sunday sales shall be unlawful except on December 31 or January 1, 'except that any town may, by a vote of a town meeting or by ordinance, allow the sale of alcoholic liquor on Sunday between the hours of twelve o'clock noon and nine o'clock in the evening in hotels, restaurants and clubs'. The underlying question determinative of the appeal is whether the word 'and' as used in the phrase 'hotels, restaurants and clubs' is to be construed in the conjunctive sense, as contended by the plaintiff, or in the disjunctive, as claimed by the defendant.

We summarize the material facts. The plaintiff owns and operates a restaurant in the town and under a restaurant liquor permit is entitled to sell liquor as provided by law. On July 12, 1945, the defendant at a special town meeting, duly warned to act upon whether 'to allow the sale of alcoholic liquor on Sunday between the hours of twelve o'clock noon and nine o'clock in the evening in hotels, but not at any bar,' pursuant to § 979e of the 1939 Supplement, by written ballot adopted a resolution that 'all persons operating places within the Town of New Hartford under a hotel permit as provided by the Liquor Control Act as amended shall be allowed to sell alcoholic liquor on Sunday' as limited by the words quoted above. At the time, one hotel, two package liquor and two tavern permits for the sale of liquor in the town had been issued and were in effect. On September 30, 1946, the defendant at its regular annual meeting, duly warned to act upon whether to allow 'the sale of alcoholic liquor on Sundays between the hours of twelve o'clock, noon, and nine o'clock in the evening in restaurants, but not at any bar,' by written ballot voted 91 to 39 against the adoption of a resolution to allow such sale, and the motion was declared lost. At a special town meeting held on November 18, 1949, an attempt to procure a vote to allow Sunday selling 'in hotels and restaurants' proved abortive and does not affect the question for determination.

The court concluded that the statutory provision in question is to be construed in the alternative, so that a town is not required, upon an affirmative vote, to allow Sunday sales by all three types of permittee but may permit such Sunday sales in hotels only; that the town meetings referred to above were properly called, conducted and concluded; that the action taken thereby was according to law; and that the plaintiff does not have the right to sell alcoholic liquor in his restaurant on Sunday.

An action for a declaratory judgment is a special statutory proceeding under § 644a of the 1949 Supplement, implemented by the rules in §§ 249 and 250 of the Practice Book. Town of Newington v. Mazzoccoli, 133 Conn. 146, 150, 48 A.2d 729. The relief thus afforded is highly remedial and the statute and rules should be accorded a liberal construction to carry out the purpose underlying such judgments. Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891; Connecticut Savings Bank v. First National Bank, 133 Conn. 403, 409, 51 A.2d 907. The object of the action is to secure an adjudication of rights which are uncertain or in dispute. Hill v. Wright, 128 Conn. 12, 15, 20 A.2d 388. The complaint must allege such uncertainty or dispute and set forth the facts necessary for the determination of the question. It must also contain facts sufficient to show that the question is not moot and that the plaintiff is a proper party. However, in an action for a declaratory judgment we are not limited by the issues joined or by the claims of counsel. Stueck v. G. C. Murphy Co., 107 Conn. 656, 661, 142 A. 301. Under § 250 of the Practice Book, a prerequisite to resort to the action is that there must be an issue in dispute or an uncertainty of legal relations which requires settlement between the parties. This provision means no more than that there must appear a sufficient practical need for the determination of the matter, and that need must be determined in the light of the particular circumstances involved in each case. Connecticut Savings Bank v. First National Bank, supra. We are guided by these principles in dealing with the record before us. While the questions presented to the trial court under the plaintiff's claim for a declaratory judgment lack the clarity of specific statement which is desirable where such a judgment is sought, they suffice to warrant our passing upon the fundamental and controlling inquiry: whether under § 979e of the 1939 Supplement the vote of the July 12, 1945, town meeting was operative to allow the sale of alcoholic liquor thereafter on Sunday under a restaurant as well as under a hotel permit, and whether the vote of September 30, 1946, was effective to prevent the sale of liquor by the plaintiff on Sunday under his restaurant permit. To state it another way, the question is whether under the statute the town meeting must vote on the Sunday sale of liquor in hotels, restaurants and clubs as a unit, or whether it may vote as to any one of the three separately and singly. While the finding fails to show that the plaintiff had a restaurant permit when either of these votes was passed, he is entitled to have his rights determined upon the facts existing at the time the case was tried. Town of Newington v. Mazzoccoli, supra.

Whether the word 'and' in the statute is to be construed in the conjunctive or the disjunctive sense is determinative of the validity of the calls and votes of the town meetings concerning Sunday sales and also of the claim of the plaintiff of an existing right in him to sell on Sunday. His principal claim is that the word should be...

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37 cases
  • Slicer v. Quigley
    • United States
    • Connecticut Supreme Court
    • 15 Abril 1980
    ...of alcoholic beverages is an activity which admittedly is dangerous to public health, safety and morals. Bania v. New Hartford, 138 Conn. 172, 177, 83 A.2d 165 (1951). One of the purposes of § 30-86 is to protect the public from the dangers posed by minors unable to control their behavior b......
  • Heiberger v. Clark
    • United States
    • Connecticut Supreme Court
    • 21 Marzo 1961
    ...although it can be said that the complaint contains allegations raising the clear inference that this is so. See Bania v. Town of New Hartford, 138 Conn. 172, 175, 83 A.2d 165; Practice Book, Forms Nos. 386-388. The prayers for relief do not comply with the rules or with the suggested forms......
  • Arrow Lakes Dairy, Inc. v. Gill
    • United States
    • U.S. District Court — District of Connecticut
    • 27 Diciembre 1961
    ...here to achieve a substitution of the disjunctive "or" for the conjunctive "and" as they have done in Bania v. Town of New Hartford, 138 Conn. 172, 176, 83 A.2d 165 (1951); and in Bordonaro v. Senk, 109 Conn. 428, 430, 147 A. 136 (1929) no fragment of constitutional doubt might remain. A si......
  • Bombero v. Planning and Zoning Com'n of Town of Trumbull
    • United States
    • Connecticut Court of Appeals
    • 9 Enero 1996
    ...settlement between the parties must be made in the light of the particular circumstances involved in each case. Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951). "The complaint must state facts sufficient to set forth a cause of action entitling the plaintiff to a declaratory j......
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