Green Mountain Post, No. 1, American Legion v. Liquor Control Bd., 531

• Decision Date: 06 January 1953
• Docket Number: No. 531,531
• Citation: 94 A.2d 230,117 Vt. 405,35 A.L.R.2d 1060
• Parties: , 35 A.L.R.2d 1060 GREEN MOUNTAIN PORT, NO. 1, AMERICAN LEGION, v. LIQUOR CONTROL BOARD.
• Court: Vermont Supreme Court

Page 230

94 A.2d 230

117 Vt. 405, 35 A.L.R.2d 1060

GREEN MOUNTAIN PORT, NO. 1, AMERICAN LEGION, v. LIQUOR CONTROL BOARD.

No. 531.

Supreme Court of Vermont.

Jan. 6, 1953.

Sylvester & Ready, St. Albans, for plaintiff.

Clifton G. Parker, Atty. Gen., and Frederick G. Mehlman, Deputy Atty. Gen., for defendant.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ., and HUGHES, Superior Judge.

SHERBURNE, Chief Justice.

This is a proceeding in equity to enjoin the defendants from suspending the plaintiff's first and third class licenses. A temporary injunction was issued. After hearing and filing of findings of fact the bill of complaint was dismissed. The only exception taken was to the dismissal of the bill.

So far as material the findings show the following facts: The plaintiff is an unincorporated association of members of the American Legion and the operator of a club, so-called, at its Legion Home in St. Albans. In the spring of 1949 it was issued first and third class licenses. Prior to July 1 of that year information came to the Liquor Control Board in regard to access to clubs in the State by non-members and non-guests. On July 5, 1949, the board promulgated and issued certain rules and regulations directed to these clubs, among which was No. 35-D reading as follows:

'Doors of the club most commonly used shall be equipped with a spring lock and kept locked at all times and shall be equipped with a bell or buzzer for use to gain entrance. The Board may upon application of the club modify this requirement, if in its judgment the enforcement of the regulation is impractical.'

On July 1, 1949, there were 112 clubs in Vermont holding either a first or third class license, or both. 67 of these had spring locks and were equipped with a bell or buzzer, which had been installed voluntarily and were in substantial compliance with the regulation later promulgated on July 5. Among the 67 was the plaintiff. After the promulgation of this regulation the country clubs having licenses and the Owls Club in St. Albans and the Ethan Allen club in Burlington, were exempted by the board from compliance therewith. The total number of clubs so exempted is about 12. On September 12, 1949, the board wrote the plaintiff to appear before the board at its office in Montpelier on September 14, 1949, at 2 p. m. to answer to a complaint of violating regulation 35-D, stating that the alleged violation took place on August 31 and September 3, 1949. As a result of telephone conversations from N. Henry Press, Esq., judge advocate for the plaintiff, the time for appearance was changed to September 23, 1949. On that date Mr. Press, as attorney for, and judge advocate of, the plaintiff, and Max Godfrey, its club supervisor, appeared before the full board. Also present were two inspectors and a third inspector was called in. After the chairman of the board had told Mr. Press of two violations about keeping doors locked and information had been given by the inspectors regarding same the hearing was closed. No witnesses were sworn and no formal testimony was taken. On September 26, 1949, the board wrote the plaintiff that after considering the testimony at the hearing on September 23rd it was voted to suspend plaintiffs' licenses for a period of 15 days, and ordered plaintiff not to sell or allow to be consumed on its licensed premises any alcoholic liquors after September 28 until October 14. Following receipt of this letter the plaintiff petitioned this Court for a writ of prohibition, Petition of Green Mountain Post, No. 1, 116 Vt. 256, 73 A.2d 309, pending which the board's order was stayed. This petition was dismissed and the stay was vacated at the May Term, 1950. Previous to that time the board had issued licenses to the plaintiff which were effective until May 1, 1951. On July 5, 1950, the board wrote the plaintiff, calling attention to its former order of suspension and stating that the order staying same was no longer in effect, and suspended plaintiffs' licenses for a period of 15 days from the close of business on July 20, 1950. The present proceedings were commenced on July 11, 1950, and the defendants were enjoined from suspending the plaintiffs' licenses as contemplated until a final determination of the merits of the bill of complaint.

Only two questions are briefed. These are:

1. That the liquor control board did not accord the plaintiff a hearing prior to its order suspending the plaintiffs' licenses.

2. That the regulation (35-D), the violation of which was the basis of the suspension order, is unconstitutional, and void.

V.S. 47, § 6164 provides:

'The * * * liquor control board shall have power to suspend or revoke any * * * license granted pursuant to this chapter in the event the person holding such * * * license shall at any time during the term thereof so conduct his business as to be in violation of the conditions pursuant to which such * * * license was granted or of any rule or regulation prescribed by the liquor control board. No revocation shall be made until the * * * licensee shall be notified and be given a hearing before the liquor control board, unless such * * * licensee shall have been convicted by a court of competent jurisdiction of violating the provisions of this chapter. * * *'

Since the only direction for a hearing is in the case of a revocation, the inference is that no hearing is required for a suspension and that the liquor control board may act upon the basis of any knowledge or information available to it, so long as its action is not arbitrary or capricious, but is made in good faith and with a view of advancing the purpose and policy of the law; unless the statute must be so interpreted as to afford the licensee a hearing before his license can be suspended, in order not to be wanting in due process of law.

Because of the tendency of the use of intoxicating liquors to deprave public morals, it has come to be the generally accepted doctrine that the manufacture or sale of such liquors, and even their possession or use, is not a matter of 'common', 'inherent', or 'natural' right, but, if a right at all, is one held subject to the police power of the state. State ex rel. Billado v. Control Commissioners, 114 Vt. 350, 354, 45 A.2d 430, and authorities cited. A license to sell intoxicating liquors is not a contract but a permit to sell subject to restrictions, and from its very nature is subject to revocation in consequence of a disregard of such restrictions or in consequence of a change of policy on the part of the government in respect to the exercise of the police power. State v. Burlington Drug Co., 84 Vt. 243, 248, 78 A. 882; State v. Gibbs, 82 Vt. 526, 74 A. 229, 24 L.R.A.,N.S., 555. The right of the licensee can rise no higher than the terms of the law under which the license is issued; and the licensee accepts the privilege subject to such conditions, including the cause and manner of suspension or revocation as the general assembly may see fit to impose. Darling Apartment Co. v. Springer, 25 Del. 420, 22 A.2d 397, 137 A.L.R. 803. Where, as here, the statute does not provide for a hearing in case of a suspension of a license the plaintiff is bound by its acceptance of the licenses...