Francis v. Fitzpatrick

• Decision Date: 11 February 1943
• Citation: 30 A.2d 552,129 Conn. 619
• Court: Connecticut Supreme Court
• Parties: FRANCIS v. FITZPATRICK et al.

129 Conn. 619

30 A.2d 552

FRANCIS

v.FITZPATRICK et al.

Supreme Court of Errors of Connecticut.

Feb. 11, 1943.

Appeal from Court of Common Pleas, Hartford County; Wall, Judge.

Proceeding on an appeal by Helen M. Francis from the action of John J. Fitzpatrick and others, constituting the Liquor Control Commission, in refusing to renew plaintiff's tavern permit.The Court of Common Pleas reserved the proceeding for the advice of the Supreme Court of Errors.

Questions answered.

Emanuel G. Goldstein, of Hartford, for appellant.

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

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

Upon this appeal from the liquor control commission's refusal to renew the plaintiff's tavern permit, the trial court reserved the constitutional questions involved for determination by this court.The material facts are stipulated.The plaintiff, who is a citizen of the United States but has never been made an elector of any town in the state, for several years has conducted a tavern in Hartford under a tavern permit issued by the defendant commission.She duly filed an application, signed by her mark, for a renewal of her permit, which expired July 9, 1942.The commission, on July 3, 1942, notified her that her application was denied because of the fact that she was not an elector as required by § 462f of the 1941 Supplement to the General Statutes, and for no other reason.

Section 462f provides: ‘After July 1, 1942, no permit shall be granted to any person unless he shall be an elector of a town within this state.’The questions reserved are: (1) Is section 462f in contravention and violation of the fourteenth amendment to the constitution of the United States and section 1 of the first article of the constitution of Connecticut?(2) Did the legislature contravene any constitutional right in adopting a law denying a liquor permit to any person who is not an elector of a town in the state?

Since the adoption in 1933 of the twenty-first amendment to the constitution of the United States, there is no doubt that a state may absolutely prohibit the manufacture, transportation, sale or possession of intoxicants, and ‘may adopt measures reasonably appropriate to effectuate these inhibitions and exercise full police authority in respect of them.’Ziffrin, Inc., v. Reeves, 308 U.S. 132, 138, 60 S.Ct. 163, 167, 84 L.Ed. 128.This greater power to prohibit includes the less to permit under definitely prescribed conditions.Seaboard Air Line R. v. State of North Carolina, 245 U.S. 298, 304, 38 S.Ct. 96, 62 L.Ed. 299.It was in the exercise of this police power that the legislature enacted the Liquor Control Act which, originally adopted in 1933, is Chapter 151 of the 1935 Cumulative Supplement to the General Statutes.Section 1026c of this chapter expressly and effectively provides that a permit shall be a purely personal privilege good for one year, revocable in the discretion of the commission, and shall not constitute property.But neither the power of the state absolutely to prohibit all traffic in alcoholic liquors nor the legislative declaration that a permit constitutes a privilege and not property renders inapplicable constitutional guaranties such as that of the equal protection of the laws.State ex rel. Galle v. New Orleans, 113 La. 371, 379, 36 So. 999, 67 L.R.A. 70, 2 Ann.Cas. 92;30 Am.Jur. 279, § 42.

It is clear that the state in the exercise of this power to permit has a large discretion as to the means employed to protect its citizens against the evil incident to the liquor traffic.Mugler v. Kansas, 123 U.S. 623, 662, 8 S.Ct. 273, 31 L.Ed. 205;Ziffrin, Inc., v. Reeves, supra.The business being one which admittedly may be dangerous to public health, safety and morals (Mugler v. Kansas, supra;Crane v. Campbell, 245 U.S. 304, 307, 38 S.Ct. 98, 62 L.Ed. 304;30 Am.Jur. 264, § 22), the scope of the legislature's power to regulate it is much broader than in the case of its regulation of an ordinary lawful business essential to the conduct of human affairs.‘In the one business no citizen has an absolute right to engage; in the other all citizens have the right, and an equal right, to engage.The difference is vital.’State v. Conlon, 65 Conn. 478, 486, 33 A. 519, 521, 31 L.R.A. 55, 48 Am.St.Rep. 227;State v. Porter, 94 Conn. 639, 643, 110 A. 59;30 Am.Jur. 278, § 40.Nevertheless, the police power of the state, like other governmental authority, is to be used for the common welfare, impartially and without unreasonable discrimination.Atchison T. & S. F. R. Co. v. Vosburg, 238 U.S. 56, 59, 35 S.Ct. 675, 59 L.Ed. 1119, L.R.A.1915E, 953.Accordingly, while as between liquor selling and other callings less potentially harmful to the public the legislature may discriminate, there is no warrant for unjustly discriminating between those persons who may be, or may desire to become, engaged in the same calling of selling liquor.State ex rel. Galle v. New Orleans, supra;City of Chicago v. Netcher, 183 Ill. 104, 114, 55 N.E. 707, 48 L.R.A. 261, 75 Am.St.Rep. 93;30 Am.Jur. 279, § 42.Therefore, the concrete question remains for determination whether the requirement of § 462f that a person must be an elector to become a permittee is arbitrary, unreasonable and discriminatory, thus violating the plaintiff's constitutional right to the equal protection of the law.

‘The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions.It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws.’Soon Hing v. Crowley, 113 U.S. 703, 709, 5 S.Ct. 730, 733, 28 L.Ed. 1145, quoted inState v. Cullum, 110 Conn. 291, 294, 147 A. 804.But no discrimination is involved where there is ‘some natural and substantial difference germane to the subject and purposes of the legislation between those within the class included and those whom it leaves untouched.’Fountain Park Co. v. Hensler, 199 Ind. 95, 102, 155 N.E. 465, also quoted in...