Cripps v. Liquor Control Comm'n.

• Decision Date: 18 April 1944
• Citation: 37 A.2d 227,130 Conn. 693
• Court: Connecticut Supreme Court
• Parties: CRIPPS v. LIQUOR CONTROL COMMISSION.

130 Conn. 693

37 A.2d 227

CRIPPS

v.LIQUOR CONTROL COMMISSION.

Supreme Court of Errors of Connecticut.

April 18, 1944.

Appeal from Court of Common Pleas, Litchfield County; Bordon, Judge.

Appeal to the Court of Common Pleas by William J. Cripps from the action of the Liquor Control Commission in suspending plaintiff's tavern permit because of his sale of alcoholic liquor to a minor. From a judgment sustaining the appeal after trial to the court, defendant appeals.

No error.

Leo V. Gaffney, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen., on the brief), for appellant (defendant).

Michael V. Blansfield, of Waterbury, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and INGLIS, JJ. (Judge ERNEST A. INGLIS of the Superior Court sat for Judge DICKENSON).

BROWN, Judge.

These facts material to our decision upon this appeal are not in dispute: The plaintiff is the holder of a tavern permit covering premises in Woodbury operated by him as a tavern. He was summoned to a hearing before the defendant on June 8, 1942, to answer charges preferred by it, among them one that he had violated § 1071c of the Cumulative Supplement 1935, of the General Statutes, by the sale or delivery of alcoholic liquor to a minor. He appeared with counsel. After hearing, the defendant imposed a three weeks suspension of his permit for this violation. Upon appeal, the Court of Common Pleas concluded that the defendant ‘acted arbitrarily, illegally or in abuse of its discretion in suspending, upon the evidence before it, the license of the plaintiff permittee for violation of Section 1071c,’ and as to that charge sustained his appeal. The present appeal on behalf of the defendant is from that judgment. At the hearing before the defendant, testimony was produced to prove the violation charged, but the plaintiff elected to offer no evidence in his own behalf, although the hearing was continued to give him opportunity to do so.

Aside from the more particular statement of the defendant's charges against the plaintiff, the sole evidence in the record before us is a transcript of the testimony at the hearing before the defendant. This contains testimony of three witnesses only relative to the violation of § 1071c, which was sufficient, if believed, to support the defendant's conclusion that the plaintiff had violated the statute by a sale to minors on November 1, 1941. Rose v. Liquor Control Commission, 124 Conn. 689, 690, 199 A. 925; Guastamachio v. Brennan, 128 Conn. 356, 360, 23 A.2d 140; Grady v. Katz, 124 Conn. 525, 530, 1 A.2d 137. The court has found, however, that during the trial before it the plaintiff testified denying these sales and that he also put in evidence the judgment file in a criminal prosecution for violation of the statute predicated upon these sales, whereby it appears that he was adjudged not guilty. It is undisputed that the court considered, as part of the evidence in reaching its decision, a transcript of the testimony introduced at the criminal trial, though how it was received as such in the present action does not appear. The court further found that substantially the same testimony that was presented before the defendant was presented in the criminal proceeding. None of these findings is attacked by the defendant. So far as the record shows, the transcript of the testimony at the criminal trial was clearly inadmissible and it could have been considered only by the court with the defendant's consent. The defendant has assigned error as to other facts found by the court, the gist of which is that William Woolsey, who admittedly was employed by the state police to obtain evidence of violations of the liquor law by the plaintiff, in order to accomplish his purpose bought beer in the plaintiff's place and unknown to him or his agent handed it to the three minors in an adjoining room; that neither the plaintiff nor his agent sold any beer to these minors or knew of their consuming it on the permit premises or even of their presence there; and that there was no credible evidence offered to warrant the defendant's finding a violation by the plaintiff of § 1071c. The defendant's attack upon the court's conclusion fundamental to support the judgment, that the defendant acted arbitrarily, illegally or in abuse of its discretion in suspending the plaintiff's permit, cannot succeed without a correction of the finding striking out these facts. This it is not entitled to, however, since the record shows that it does not include the evidence relevant to the error claimed in this regard. Practice Book 1934, p. 102, § 346; Conn.App.Proc., §§ 106, 107; Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521; Schroeder v. Taylor, 104 Conn. 596, 602, 134 A. 63; Appeal of St. John's Church, 83 Conn. 101, 105, 75 A. 88. Therefore, the defendant cannot prevail upon its appeal.

This is decisive of the present case. The record, however, indicates a misconception by court and counsel of the amendment made in 1941 to the Liquor Control Act which added to the former law that upon such an appeal ‘the trial shall be de novo’ and that the court, ‘after a hearing thereon, may reverse or affirm, wholly or partly, or may...