Krzysztalowski v. Fortin

Decision Date30 June 1967
Docket NumberNo. 5593,5593
Citation230 A.2d 750,108 N.H. 187
PartiesMary S. KRZYSZTALOWSKI v. George FORTIN et al. Jan KRZYSZTALOWSKI v. George FORTIN et al.
CourtNew 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.

KENISON, Chief Justice.

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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  • Thacker v. Board of Trustees of Ohio State University
    • United States
    • Ohio Supreme Court
    • 27 Junio 1973
    ...151 Mont. 345, 347, 443 P.2d 1. But, see Section 75-7011, 2d Repl.Vol. 4 (Pt. 2), Montana Rev.Code.New Hampshire: Krzysztalowski v. Fortin (1967), 108 N.H. 187, 230 A.2d 750.North Carolina: Orange Cty. v. Heath (1972), 14 N.C.App. 44, 187 S.E.2d 345; Brooks v. Univ. of N. Car. (1968), 2 N.C......
  • State v. Lake Winnipesaukee Resort, LLC
    • United States
    • New Hampshire Supreme Court
    • 17 Junio 2009
    ...; see Board of Educ. v. A, C and S, Inc., 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580, 603 (1989) ; cf. Krzysztalowski v. Fortin, 108 N.H. 187, 189, 230 A.2d 750 (1967) ("The extent to which ... [sovereign] immunity should be preserved or waived is purely a legislative question." (quot......
  • Opinion of the Justices
    • United States
    • New Hampshire Supreme Court
    • 24 Mayo 1985
    ...19, 1985. I. Introduction "The doctrine of sovereign immunity is deeply entrenched in this jurisdiction." Krzysztalowski v. Fortin, 108 N.H. 187, 188, 230 A.2d 750, 751 (1967). "[T]he State is ... immune from suit in its courts [unless it] consent[s]...." Sousa v. State, 115 N.H. 340, 342, ......
  • City of Dover v. Imperial Cas. & Indem. Co.
    • United States
    • New Hampshire Supreme Court
    • 30 Abril 1990
    ...that "[t]he extent to which ... immunity should be preserved or waived is purely a legislative question." Krzysztalowski v. Fortin, 108 N.H. 187, 189, 230 A.2d 750, 752 (1967) (quoting Opinion of the Justices, 101 N.H. at 549, 134 A.2d at 281). Following the decisions in Gossler and Krzyszt......
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