Blue Sky Bar, Inc. v. Town of Stratford

• Decision Date: 31 March 1987
• Docket Number: No. 12837,12837
• Citation: 523 A.2d 467,203 Conn. 14
• Court: Connecticut Supreme Court
• Parties: BLUE SKY BAR, INC., et al. v. TOWN OF STRATFORD et al.

Page 467

523 A.2d 467

203 Conn. 14

BLUE SKY BAR, INC., et al. v. TOWN OF STRATFORD et al.

No. 12837.

Supreme Court of Connecticut.

Argued Dec. 9, 1986.

Decided March 31, 1987.

Lawrence J. Merly, with whom was Nicholas E. Wocl, Bridgeport, for appellants (plaintiffs).

Carl E. Watt, Asst. Town Atty., for appellees (defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and FREDRICK A. FREEDMAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an appeal from the Appellate Court's decision upholding the trial court's refusal to declare invalid and enjoin the enforcement of an ordinance enacted by the named defendant, the town of Stratford, which prohibits vending from any type of motor vehicle upon the streets or public property within the town limits.

The stipulated facts include the following: The named plaintiff, Blue Sky Bar, Inc. (Blue Sky Bar), is a Connecticut corporation engaged in the business of vending ice cream and related food products from specially designed mobile vending trucks. Its business is principally concentrated in southwestern Connecticut. Vending is conducted during a season which runs approximately from March 18 to October 18 of each year. Most of the sales take place in residential neighborhoods with the balance taking place at recreation areas, playgrounds and beaches. The ice cream and related products which the plaintiffs sell are purchased from suppliers in at least seven states.

In May, 1983, the plaintiffs, Michael A. McDougall and Brian Tomasko, drivers of Blue Sky Bar trucks, individually applied for and were issued permits by the defendant town of Stratford to vend ice cream from a mobile vehicle during the 1983 vending season. McDougall and Tomasko also obtained health permits to vend food in Stratford.

On May 23, 1983, the defendant town passed an ordinance, effective upon passage, which provides in relevant part: "It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type of motor vehicle any commodity whatsoever." ¹ The stated purpose of the ordinance is to reflect the citizens' concerns regarding public safety. On May 25, 1983, the plaintiffs brought an action against the town and its chief of police seeking (1) a temporary and permanent injunction restraining the defendants from enforcing the ordinance, and (2) a declaratory judgment declaring the ordinance "illegal, void, unconstitutional and unenforceable." ² On June 2, 1983, the trial court issued a temporary order restraining enforcement of the ordinance pending a full hearing on the merits. The case was heard on November 17, 1983, and, on December 15, 1983, the court rendered judgment for the defendants. The court held that the defendant town had statutory authority, pursuant to General Statutes § 7-148(c)(7)(H)(iv), to enact the ordinance, that the ordinance was a reasonable exercise of the defendants' police power, and that the ordinance was constitutionally permissible. ³ The plaintiffs' request to make the temporary restraining order permanent was denied. On appeal, the Appellate Court agreed with the trial court and held accordingly. Blue Sky Bar, Inc. v. Stratford, 4 Conn.App. 261, 493 A.2d 908 (1985).

Upon the granting of their petition for certification, the plaintiffs have appealed to this court claiming that the Appellate Court erred in concluding that: (1) the defendant town had statutory authority to enact the ordinance; (2) the ordinance is a reasonable exercise of police power; and (3) the ordinance is constitutionally permissible. The plaintiffs also claim that the Appellate Court erred in not reviewing the issue of whether General Statutes § 7-148(c)(7)(H)(iv) unconstitutionally prohibits the operation of a legitimate business. ⁴ We disagree.

I

We consider first the plaintiffs' claim that the defendants lacked statutory authority to prohibit vending from any type of motor vehicle. The plaintiffs and the defendants agree that the resolution of this issue necessarily hinges upon the relationship between General Statutes §§ 21-37 ⁵ and 7-148(c)(7)(H)(iv). ⁶ Section 21-37, which was enacted in 1909, provides in part that "[a]ny town may make reasonable ordinances with reference to the vending or hawking upon its public streets of any goods, wares or other merchandise at public or private sale or auction, or to the vending or peddling of such articles from house to house within its limits...." Section 7-148(c)(7)(H)(iv); which is part of the Home Rule Act and was adopted in 1982, states that any municipality has the power to "[p]rohibit, restrain, license and regulate the business of peddlers, auctioneers and junk dealers in a manner not inconsistent with the general statutes."

The plaintiffs maintain that the ordinance is invalid because it is inconsistent with § 21-37, which permits only the enactment of "reasonable ordinances" with reference to vending, rather than the "prohibition" of vending. The plaintiffs acknowledge that § 7-148(c)(7)(H)(iv) uses the term "prohibit" but point out that that section also states that a municipality must enact ordinances "in a manner not inconsistent with the general statutes." This provision, they argue, must be read in conjunction with § 21-37. They maintain that "obviously, the legislature intended § 7-148(c)(7)(H)(iv) to be limited by § 21-37." The plaintiffs also claim that § 7-148(c)(7)(H)(iv), when read together with § 21-37, only permits a municipality "to prohibit a legitimate business if that business does not follow the licensure requirements or reasonable regulations imposed upon it." The defendants, on the other hand, argue that the two statutes are not inconsistent; that is, § 7-148(c)(7)(H)(iv) merely "elaborates" on the type of action a municipality may choose when enacting a "reasonable ordinance."

The Appellate Court agreed with the defendants' argument and viewed " § 7-148(c)(7)(H)(iv) as an elaboration of the types of action a municipality may choose when enacting a reasonable ordinance in the exercise of its police powers under § 21-37." Blue Sky Bar, Inc. v. Stratford, supra, 264, 493 A.2d 908. This construction, the Appellate Court determined, "[gave] both statutes efficacy." Id. The court concluded, therefore, that the defendants possessed the statutory authority to prohibit vending from motor vehicles. While we agree with the conclusion reached by the Appellate Court that the defendant town had statutory authority to enact the ordinance, we do so for different reasons. We need not decide the issue of whether § 7-148(c)(7)(H)(iv) authorizes a municipality to prohibit outright any and all vending on public streets and property because the ordinance at issue in this case is not a prohibition of vending, but is simply a permissible regulation of the method by which commodities may be merchandised.

It is well settled law that as a creation of the state, a municipality has no inherent powers of its own; New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981); and that a municipality possesses only such rights and powers that have been granted expressly to it by the state or that are necessary to discharge its duties and to carry out its objectives and purposes. Id., 402, 439 A.2d 404, citing City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); see also Simmons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985); Buonocore v. Branford, 192 Conn. 399, 401-402, 471 A.2d 961 (1984). ⁷ Under both §§ 21-37 and 7-148(c)(7)(H)(iv), the state has granted to municipalities the power to regulate vending on public streets and public property. The issue then is whether the ordinance enacted by the defendant town is a regulation or a prohibition of vending because if the ordinance acts to regulate rather than prohibit outright, we need not discuss the issue addressed by the Appellate Court concerning the relationship between §§ 21-37 and 7-148(c)(7)(H)(iv).

The word "regulate" has been defined as " 'to prescribe the rule by which commerce is to be governed.' " United States v. Darby, 312 U.S. 100, 113, 61 S.Ct. 451, 456, 85 L.Ed. 609 (1941). "The power to regulate, however, entails a certain degree of prohibition. 2 McQuillin, Municipal Corporations (3d Ed.) § 10.26. The word 'regulate' implies, when used in legislation, the bringing under the control of constituted authorities the subject to be regulated. Webster, New International Dictionary (2d Ed.). It infers limitations." Hartland v. Jensen's Inc., 146 Conn. 697, 702, 155 A.2d 754 (1959); see Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 342, 348 A.2d 596 (1974). We have recognized that it "requires no citation of authority to say that regulation may in many instances result in prohibition. The question is whether the result is reached in a reasonable manner and is necessary for the public welfare." Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959). It is fair to say that the power to regulate, however, does not necessarily imply the power to prohibit absolutely any business or trade, as the very essence of regulation, which infers limitations, is the continued existence of that which is regulated. Prohibition of an incident to or particular method of carrying on a business is not prohibition, but rather it is merely "regulation." Steffey v. Casper, 357 P.2d 456, 461 (Wyo.1960); see also Breard v. Alexandria, 341 U.S. 622, 631, 71 S.Ct. 920, 927, 95 L.Ed. 1233, reh. denied, 342 U.S. 843, 72 S.Ct. 71, 96 L.Ed. 637 (1951) ("[a]ll regulatory legislation is [in a sense] prohibitory"); Fenton Gravel Co. v. Fenton, 371 Mich. 358, 361-62, 123 N.W.2d 763 (1963) (ordinance which prohibited large vehicles from using certain streets but established other routes through village at a greater distance from the plaintiffs' business constituted a "regulation"...