Krzysztalowski v. Fortin
Decision Date | 30 June 1967 |
Docket Number | No. 5593,5593 |
Citation | 230 A.2d 750,108 N.H. 187 |
Parties | Mary S. KRZYSZTALOWSKI v. George FORTIN et al. Jan KRZYSZTALOWSKI v. George FORTIN et al. |
Court | New Hampshire Supreme Court |
R. J. Shortlidge, Jr., Keene (by brief and orally), for plaintiffs.
George S. Pappagianis, Atty. Gen. and R. Peter Shapiro, Asst. Atty. Gen. (R. Peter Shapiro, Concord, orally), for defendant George Fortin.
The power of the State to regulate the manner and methods of the sale of intoxicating liquor is well established. State v. Roberts, 74 N.H. 476, 69 A. 722, 16 L.R.A., N.S., 1115; The Manchester Press Club v. State Liquor Commission, 89 N.H. 442, 200 A. 407, 116 A.L.R. 1093; Nashua Wholesale Grocers, Inc. v. State Liquor Commission, 95 N.H. 224, 60 A.2d 124; Carling Brewing Co. v. State Liquor Commission, 102 N.H. 284, 287, 155 A.2d 808. The principal issue in this case is whether the operation of state liquor stores is such a function of government as to insulate the State from tort claims under the doctrine of sovereign immunity. Annot. 9 A.L.R.2d 1292. See Schippa v. W. Va. Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284.
The doctrine of sovereign immunity is deeply entrenched in this jurisdiction. Moore v. Dailey, 97 N.H. 278, 86 A.2d 342; Opinion of the Justices, 101 N.H. 546, 134 A.2d 279; Public Service Co. v. State, 102 N.H. 54, 149 A.2d 874. Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L.Rev. 1363, 1389 (1954). 'The state cannot be sued without its consent and this immunity extends to officers of the state in the performance of their official functions.' Fourth Report, N.H. Judicial Council 34 (1952). The governmental nature of liquor sales in this state was indicated in State v. Ellard, 95 N.H. 217, 220, 60 A.2d 461, 463, where it was stated that the State Liquor Commission (RSA 176:1) is 'a part of the State government.' 'It may fairly be said that the commission in the realm of facts 'has but imaginary existence apart from that of the State itself' and that the respondent (manager of a state liquor store) was a servant of the State.' State v. Ellard, supra.
The plaintiff concedes that certain functions of the State in regulating liquor traffic is governmental but argues that the operation of state liquor stores for profit through its own stores, whether leased or owned, is a business and is a commercial, revenue-producing activity which is not a governmental function. The plaintiff contends that the purpose is not to restrict and limit the consumption of intoxicating liquors (see Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397) but to encourage sales. He points to 'New Hampshire's periodic clearance sales, continuing construction and improvement of retail facilities near the State's border, consistent underselling of vendors in adjacent states and the installation of vending machines for sweepstakes tickets in state liquor stores.' Plaintiff further points to the not incidental factors that the State's gross sales are over 42 million, the gross annual profit almost 12 million, the net profit almost 10 million and annual percentage increase is approximately 12%. See 32d Annual Statement of State Liquor Commission for period ending June 30, 1966, p. 4 (1966). Cf. State of Ohio v. Helvering, 292 U.S. 360, 54 S.Ct. 725. 78 L.Ed. 1307 Although the writer of this opinion sees merit in these arguments, and takes a dim view of governmental immunity (Gossler v. City of Manchester, 107 N.H. 310, 315, 221 A.2d 242 (dissenting opinion); 3 Davis Administrative Law Treatise, s. 25.01 (1965 Supp.), the solid fact remains that neither the Legislature nor this court is committed to the abrogation of governmental immunity for torts as the cases cited in the previous paragraph demonstrate. Fournier v. City of Berlin, 92 N.H. 142, 26 A.2d 366, 140 A.L.R. 1054. 'The extent to which that (...
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