Moretti v. Div. of Intoxicating Beverages, s. 717, 718.

• Decision Date: 30 March 1939
• Docket Number: Nos. 717, 718.,s. 717, 718.
• Citation: 5 A.2d 288
• Parties: MORETTI v. DIVISION OF INTOXICATING BEVERAGES (two cases).
• Court: Rhode Island Supreme Court

5 A.2d 288

MORETTI

v. DIVISION OF INTOXICATING BEVERAGES (two cases).

Nos. 717, 718.

Supreme Court of Rhode Island.

March 30, 1939.

MOSS, J., dissenting.

Certiorari proceedings by Michael Moretti and by Vincenzo Moretti against the Division of Intoxicating Beverages to review decisions of the respondent regarding petitioners' class B licenses to sell intoxicating beverages.

Record of respondent's proceedings with reference to appeals from decisions of board granting licenses to petitioners quashed.

Sisson & Fletcher, of Providence, for petitioners.

Hoyt W. Lark, Hart, Gainer & Carr, and William G. Troy, all of Providence, for respondents and remonstrants.

CONDON, Justice.

These are petitions for writs of certiorari to the state division of intoxicating beverages, hereinafter referred to as the division. The writs issued. The petitioners are holders of class B licenses to sell intoxicating beverages on certain premises on Park avenue, in the city of Cranston, in the vicinity of the Cranston Stadium and Recreation Field. On the recommendation of the police commission of Cranston each license was granted by the board of license commissioners of that city, hereinafter referred to as the board, over the objection of certain remonstrants.

These remonstrants duly filed with the division an application to review each decision of the board. The division, after a hearing, made an order which amounted to a revocation in part of each license. Each license, as granted by the board, was for a period of one year beginning December 1, 1938. The division ordered that each license should expire on March 31, 1939.

The ground of the division's decision in each case was the same. It held that it was contrary to the general welfare of the city of Cranston and to the welfare of the youth of that city to permit class B licenses for premises as close to the stadium as those of the petitioners. The evidence before the division showed that the stadium was used by school children in large numbers during a substantial portion of the year.

The petitioners contend that the division acted without jurisdiction, and under this contention they urge that, under sec. 14 of chapter 2013, Public Laws 1933 as amended by sec. 4, chapter 2088, Public Laws 1934, the remonstrants had no standing to appeal to the division.

Some question has been raised as to the appropriateness of certiorari to review these decisions of the division. It is admitted by the respondent that in a proper case certiorari will lie to review its action, but neither of these cases, it contends, is a proper case. In our view of the record before us, they are proper cases for review by certiorari, as the questions raised by the contentions of the petitioners are questions of law.

Were the remonstrants here entitled to appeal to the division to review the decisions of the board? If they had such a right, it must be found in the statute. Bearing in mind that sec. 81 of the statute is a mandate to us to construe the statute liberally in aid of its declared purpose to promote temperance and to control the traffic in alcoholic beverages, we have carefully examined it section by section to find some language which was broad enough to warrant us in holding that these remonstrants were authorized to appeal from the decisions of the board. We have found that the legislature has not made it at all clear just who are entitled to appeal. Sections 14, 20 and 21 are the only sections which seem to throw any light on the question.

Section 14 as amended by chap. 2088, sec. 4, provides: "Upon the application of any petitioner for a license, or of any person hereby authorized to protest against the granting of a license, or upon the application of any licensee whose license shall be revoked by any local board or authority, the commission shall have the right to review the decision of any local board and after hearing to confirm or reverse the same in whole or in part, and to make such decision or order as to it shall seem proper, but such application shall be made within ten days after the making of the decision or order sought to be reviewed; and notice of said decision or order shall be given by said local or licensing board to the applicant within twenty-four hours after the making of its decision or order; and such decision or order shall not be suspended except by the order of the commission." (italics ours)

Two classes of persons appear to be authorized to appeal by this section: (1) Any petitioner for a license and any licensee whose license shall be revoked by any local board; (2) any person who is authorized by the chapter to protest against the granting of a license. The first class is definitely identified but the second class is not. Those who qualify for inclusion in that class must be determined from the language appearing in sec. 21 of the chapter.

Section 21, as amended by sec. 5 1/2 of chap. 2088, provides that retailers class B licenses shall not be issued where the owners of the greater part of the land within two hundred feet of the proposed licensed premises object to such license, nor for any building or place within two hundred feet measured by any public way of the premises of any public or parochial school or of a place of public worship.

By virtue of the first clause of this section, an owner of land within two hundred feet of the proposed licensed premises is necessarily a person authorized to protest against the granting of a license. Under the second clause, any person who objects to the local board on the ground that the proposed licensed premises are within two hundred feet of a school or a church is also authorized by the statute to protest against the granting of a license. Any person who qualifies under either of these clauses is therefore entitled to appeal under sec. 14.

Do the remonstrants here qualify under either clause? It does not appear from the record that any of them are the owners of land within two hundred feet of either licensee's premises, and so they do not qualify under the first clause. Nor does it appear that they objected to the granting of either of these licenses on the ground that the licensed premises were within two hundred feet of a school or of a church, or even within that distance of the stadium. Indeed, the record shows that each licensee's premises are situated more than two hundred feet from the stadium. Hence these remonstrants do not qualify under the second clause.

But it is argued that the language of sec. 20 necessarily implies that remonstrants who appear at the hearing before the local board and who, for any reason, object to the granting of a license shall have the standing of persons authorized to protest. If we accept this contention there is practically no restriction on the right to appeal, as anyone, in response to the advertised notice of the hearing on applications for license, may remonstrate. We do not think that the language in sec. 20 shows that the legislature intended that all persons who had the right to be heard before the local board as remonstrants must therefore be deemed to be persons referred to in sec. 14 as authorized to protest against the granting of a license.

To adopt the construction of sec. 20 urged by the respondent would make useless the legislature's careful limitation of the right of appeal as set out in sec. 14. There would appear to be no reason for attempting to prescribe in that section the qualifications necessary to authorize one to appeal, if all persons who have the right to remonstrate to the board against the granting of a license may be heard to appeal, as there are no restrictions in the statute on the right to remonstrate. In construing the language which the legislature has employed, we are bound to avoid such an absurd result if possible. Obviously there is ambiguity in the language which the legislature has used to express its intention, and that ambiguity must be resolved in favor of a construction that would be reasonable.

It may be argued that on such occasions as the instant cases present, residents of the community who have a civic interest, as well as those having an individual property interest, in the granting of a license in a particular neighborhood, should be allowed to protest against the granting of such license and have the right to appeal. If the matter is called to the attention of the legislature it may be persuaded to make the necessary amendment to the statute to provide such a right. But we have no authority to anticipate such possible action and, by construction of the statute as it now stands, find such a right of protest where none is clearly given expressly or by necessary implication. It is our duty to construe the statute, not to redraft it.

Recently, in Baginski v. Alcoholic Beverage Commission, 4 A.2d 265, we held that the commission, on an appeal properly before it, had the right to hear the entire matter de novo and to make such decision as to it seemed proper, subject only to correction on certiorari by this court for error of law. This, we conceded, made the commission, on cases properly appealed to it, a super-licensing board. If we were now to hold by a strained construction that any one who has a right to remonstrate against the granting of a license by the local board was, by the statute, authorized to appeal to the commission—now the division—the local board would be left with little if any authority over the granting of licenses. The practical effect of such a construction would be to strip the local board of the discretion which is granted to it by the statute and to transfer it to the state division. We are convinced that the legislature did not intend to go so far; at least we are unable to find such an intention in the language which it used.

Counsel for the remonstrants urged upon us reasons...