De Mond v. Liquor Control Comm'n.

• Decision Date: 17 February 1943
• Citation: 129 Conn. 642,30 A.2d 547
• Court: Connecticut Supreme Court
• Parties: DE MOND v. LIQUOR CONTROL COMMISSION.

129 Conn. 642

30 A.2d 547

DE MOND

v.LIQUOR CONTROL COMMISSION.

Supreme Court of Errors of Connecticut.

Feb. 17, 1943.

Appeal from Court of Common Pleas, New Haven County; Fitzgerald, Judge.

Action in the Court of Common Pleas by Andrew De Mond against the Liquor Control Commission to review an order of the defendant revoking the plaintiff's restaurant beer permit. A demurrer to the complaint was overruled. On defendant's failure to plead further, judgment was rendered reversing the defendant's decision, and the defendant appeals.

Error, and case remanded with direction to sustain demurrer.

Harry L. Brooks, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen., on the brief), for appellant (defendant).

Franklin Coeller, of New Haven, for appellee (plaintiff).

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

MALTBIE, Chief Justice.

The plaintiff, appealing from the liquor control commission, merely alleged that on and before September 29, 1941, he had held a restaurant beer permit and that on that day the commission revoked it, assigning violation of one of its regulations as the reason. The defendant demurred to the complaint substantially on the ground that the plaintiff had failed to allege any facts upon which the court could render judgment in his favor. The demurrer was overruled and the plaintiff moved for judgment because of the defendant's failure to plead over. After some intervening proceedings not necessary to relate, judgment was entered for the plaintiff and the defendant appealed. The question is whether the allegations of the complaint were sufficient to bring the matter before the court so that it could adjudicate the issue between the parties.

The plaintiff relies, in support of his claim that the appeal was sufficient, upon two amendments made in the section of the Liquor Control Act concerning appeals which added to the former law the provision that upon an appeal ‘the trial shall be de novo,’ and that the court, ‘after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.’ General Statutes, Supp.1941, § 463f. In determining the legislative intent expressed in these provisions, it is necessary to have in mind the functions which under our constitution can properly be vested in the courts in matters of this nature. In Hopson's Appeal, 65 Conn. 140, 146, 31 A. 531, 532, we said that the issuance of licenses to sell intoxicating liquors ‘lies on the border line of the division between executive and judicial power, and that it is competent for the legislature to commit its exercise either to judicial or executive officers, as may be found necessary for the most efficient enforcement of its police regulations.’ In Underwood v. County Commissioners, 67 Conn. 411, 416, 35 A. 274, 275, we said that the power and duty of the county commissioners to grant such licenses under the law then in effect ‘are administrative, and not judicial, in their nature.’ These decisions were made before the careful consideration given in Appeal of Norwalk Street Ry. Co., 69 Conn. 576, 37 A. 1080, 38 A. 708, 39 L.R.A. 794, to the question of the division of powers between the three departments of government and the decision then reached that administrative functions could not constitutionally be vested in the courts. Thereafter, we re-examined the proposition quoted above from the Hopson case; Malmo's Appeal, 72 Conn. 1, 6, 43 A. 485; Moynihan's Appeal, 75 Conn. 358, 53 A. 903; and in Appeal of Bridgeport Malleable Iron Co., 86 Conn. 378, 383, 85 A. 580, 582, we stated that an appeal from the county commissioners in a matter involving the issuance of a license to sell liquor ‘does not and cannot transfer to the superior court the jurisdiction of the county commissioners to hear purely administrative questions, and that the word ‘appeal’ is thus a misnomer when applied to these appeals from the county commissioners, because the proceeding by appeal does not transfer the entire matter to the superior court for a rehearing, but takes there only judicial questions involving the legality of their conduct.' That statement applies fully to an appeal taken from the liquor control commission.

We cannot attribute to the legislature an intent to pass a law which would contravene the constitution if...