Malmo v. Comm'rs of Fairfield County
Decision Date | 01 June 1899 |
Citation | 43 A. 485,72 Conn. 1 |
Parties | MALMO v. COMMISSIONERS OF FAIRFIELD COUNTY. |
Court | Connecticut Supreme Court |
Case reserved from superior court, Fairfield county; Ralph Wheeler, Judge.
Application of Herman E. Malmo for a writ of mandamus to the commissioners of Fairfield county to compel them to license the sale of intoxicating liquors. On motion to quash. Case reserved for advice. Grant of motion advised.
The plaintiff, on December 15, 1898, applied to county commissioners for a license to sell intoxicating liquors at 152 Washington street, in the town of Norwalk. Sundry taxpayers remonstrated, because the place designated is not a suitable place to be so licensed. February 4, 1899, the commissioners refused to grant the license on the ground the place is not suitable. February 16, 1899, the plaintiff, in pursuance of chapter 175, Pub. Acts 1893, appealed to the superior court. Neither the county commissioners, nor the remonstrants, nor any person except the appellant appeared. The superior court, after hearing the appellant and his witnesses, rendered judgment as follows: "It is adjudged that the said decision of said county commissioners made on the 4th day of February, 1899, as appealed from, be, and the same is hereby, vacated and reversed; that said Herman E. Malmo, appellant, is a suitable person to whom a license to sell spirituous and intoxicating liquors may be granted; that said location in said city of South Norwalk, within said town of Norwalk, is a suitable place at which to issue a license for the sale of spirituous and intoxicating liquors; that a license must be granted and issued to the said Herman E. Malmo, the appellant; and that this cause be, and the same is hereby, remanded to the said county commissioners for action in accordance with the judgment of the court herein; and it is ordered and adjudged that the said county commissioners forthwith issue to said Herman E. Malmo a license to sell spirituous and intoxicating liquors at said place in said city of South Norwalk, within said town of Norwalk." On March 28, 1899, the clerk of the superior court transmitted to the county commissioners a duly-certified copy of this judgment. On April 5, 1899, the plaintiff made demand on the county commissioners for a license, and tendered the license fee, and offered a sufficient bond as required by law; but the commissioners refused to grant any license to the plaintiff, and still refuse to issue said license. The alternative writ recites these facts in detail, including a copy of the proceedings from the first application for a license to the judgment of the superior court on appeal, and also recites that "said applicant has complied with all requirements of the law, and is legally entitled to said license, and has been entitled thereto since the said 5th day of April, 1899." The motion to quash assigns the following reasons:
Stiles Judson, Jr., and John J. Cuneo, for applicant.
George P. Carroll, for respondents.
HAMERSLEY, J. (after stating the facts). The defendants' main contention is that licensing the sale of intoxicating liquors is an executive function, which cannot be exercised by the superior court. The incapacity of the judicial department, under our constitution, to exercise functions that are essentially and distinctively executive or legislative, unless as incident to the exercise of some legitimate judicial power, was so deliberately considered and settled in the recent case of Appeal of Norwalk St. Ry. Co., 69 Conn. 576, 37 Atl. 1080, and 38 Atl. 708, and the application of this constitutional prohibition was then so fully discussed, that we deem it unnecessary to say anything further on the subject now. The present case must be controlled by that decision. There was, in former times, no clear distinction between courts as a depository of judicial power and courts as the servants of the executive power; but this confusion was confined largely to the highest tribunal in which supreme legislative, executive, and judicial powers were united, and to inferior courts, whose position as judicial or executive bodies was not infrequently difficult to determine. The constitution radically changed this. Certain courts were established and authorized, the tenure of office and mode of appointment of their Judges prescribed, and in these courts or "magistracy" the judicial power of the state was vested, and they were excluded from the exercise of legislative and executive power. It does not, therefore, follow that the exercise of a particular function by a court, especially by an inferior court, during the period of confusion, even if continued afterwards, necessarily Indicates such function as pertaining to the judicial power. It is, however, true that a particular function may be so near the border line of judicial power that its definition calls for subtle distinctions, and its nature depends to an extent on the purpose and manner of its use; and in respect to such a function its long association with judicial action may be decisive of its character, so far, at least, as to justify its treatment as being according to circumstances, either within the judicial or executive power. A constitutional prohibition involved in the declaration of a fundamental principle of government cannot be treated from the narrow standpoint of mere statutory construction; it controls the substance, rather than the form, of legislation; it speaks with an ever-present authority, which is not modified by the fact of occasional violations overlooked or condoned, and should not be Invoked unless the principles on which it rests are actually concerned. In Hopson's Appeal, 65 Conn. 140, 146, 31 Atl. 531, we stated that the licensing of persons to sell Intoxicating liquors is a matter which the legislature may properly commit to either department of government. When, however, it is treated as a judicial function, the purpose and manner of its exercise cannot be, in all respects, the same as when it is treated as a purely executive function, and the power may be committed to courts in such manner and for such purpose as to pass the limits of judicial power. In Hopson's Appeal we did not...
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State v. Hughes
...1 For summation of methods of control from colonial times to the end of the nineteenth century, reference is made to Malmo's Appeal, 72 Conn. 1, 6, 43 A. 485.2 The informations and bills of particulars appear to have been drawn in a cursory manner. They do not spell out the specifics of the......
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...its definition calls for subtle distinctions, and its nature depends to an extent on the purpose and manner of its use.' Malmo's Appeal, 72 Conn. 1, 5, 43 A. 485, 486; City of Norwalk v. Connecticut Co., 88 Conn. 471, 477, 91 A. 442. It has been said that it is difficult in a given case to ......
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