Murphy v. Bergin

Decision Date07 March 1934
Citation171 A. 433,118 Conn. 249
CourtConnecticut Supreme Court
PartiesMURPHY v. BERGIN et al.

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Application by Edward J. Murphy to the Liquor Control Commission composed of Frank S. Bergin and others, for a druggist permit to sell alcoholic liquors. From the action of the Commission refusing the application, applicant appealed to the superior court where a demurrer to defendants second defense was sustained and, defendants failing to plead over, judgment was rendered for plaintiff, from which defendants appeal.

No error.

Ernest L. Averill, Deputy Atty. Gen., Warren B Burrows, Atty. Gen., and H. Roger Jones, Asst. Atty. Gen for appellants.

John C. Blackall, of Hartford, and William Hanna, of Danbury, for appellee.

Louis Y. Gaberman, Glen W. Fox, and Stewart N. Dunning, all of Hartford, amicus curiae .

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, Chief Justice.

The Liquor Control Act, General Statutes, Cum. Supp. 1933, § 669b et seq., had its origin in three Public Acts of the General Assembly of 1933, cc. 140, 329, and 330. The latter two were amendments of the first act. Chapter 330 contained a number of detailed changes not material to the question before us. Chapter 329, however, dealt solely with the rights of druggists and druggist permits and is directly involved in this controversy. The original file of the bill, and the Journals of the House and Senate, show that the bill was received in the Senate on the last day of the session, under suspension of the rules, and was passed there and in the House without reference to any committee and without amendment.

Chapter 140 (Gen. St. Supp. 1933, § 669b et seq.) established the liquor control commission and defined the various alcoholic liquors within its scope. The definitions given of " alcohol," " spirits," " wine," " beer," and " alcoholic liquors" are sufficiently broad to include medicinal compounds, proprietary or otherwise, containing alcohol. See State v. Gray, 61 Conn. 39, 22 A. 675. The act provided for the issuance of various classes of permits for the manufacture and sale of alcoholic liquors, as follows: Manufacturer permit; wholesaler permit; package store permit; hotel permit; restaurant permit; club permit; tavern permit; railroad permit; boat permit; and druggist permit. Each class of permit is dealt with in a separate section or sections of the act, which define the acts permitted, and regulate the conduct of the business, under it. Of these the sections directly pertinent to our inquiry are those which deal with the package store permit and the druggist permit. The package store permit allowed the sale at wholesale or retail of alcoholic liquor, not to be drunk on the premises and only in sealed bottles and containers of not less than one quart or twenty-four fluid ounce capacity, except that in the case of been the commission might prescribe the size of the containers. Another section of the act (Gen. St. Supp. 1933, § 730b) provided that sales in places operating under package store permits were unlawful on the days of state or municipal elections, on Sundays, or on other days before 7 a. m. or after 6 p. m. The druggist permit, dealt with in sections 29 and 30 of the original act (Gen. St. Supp. 1933, § § 697b, 698b), allowed the use of alcoholic liquor for compounding prescriptions, and its sale upon prescription, subject to certain regulations, and also the sale of alcoholic or of proprietary medicinal compounds and preparations, put up separately in sealed packages, in the original unbroken containers, subject to certain restrictions as to the labels upon the containers and in accordance with regulations of the commission; and this permit might be granted even if the drug store in connection with which it was to be used was in a town which had voted against the issuance of permits within its territory. No provision of the Act restricted the exercise of the right allowed under a druggist permit as to any particular days or hours, but it was provided that any pharmacist who sold alcoholic liquor to be drunk upon the premises should, upon conviction, forfeit both his druggist permit under the act and also his pharmacist's permit. The fee fixed by the act for a package store permit and a drug store permit was the same. The provisions of the act as to applications for permits, the conditions under which they were to be issued, prohibitions against the issuance of the permits to certain persons and for certain places, the procedure to be followed in obtaining them, and the revocation of permits were in general language applicable, except in certain specified instances, to permits of all classes. The act gave a right of appeal to the superior court " " to any applicant" whose application for a permit or a renewal had been refused or whose permit had been revoked. This section of the law (Gen. St. Supp. 1933, § 711b) contained a provision as follows: " If said court shall decide, upon the trial of such appeal, that the appellant is a suitable person to sell alcoholic liquor, and that the place named in his application is a suitable place, within the class of permit applied for or revoked, and shall render judgment accordingly, a copy of such judgment shall be forthwith transmitted by the clerk of said court to the commission, and the commission shall thereupon issue a permit to such applicant to sell such alcoholic liquor at such place for the remainder of the permit year."

Chapter 329 amended chapter 140 by adding certain definitions to the effect that the words " registered pharmacist" or " registered druggist" as used in the act should mean any person licensed as such under the laws of this state to compound and dispense medicines upon prescription by a physician, and actively engaged in the practice of that profession, and that the words " registered pharmacy" or " registered drug store" should mean a place registered as such by the pharmacy commission, and under the management of a registered pharmacist, the principal function of which was to compound physicians prescriptions and to manufacture or sell drugs, medicines, and allied products. It then amended sections 29 and 30 of the original act (Gen. St. Supp. 1933, § § 697b, 698b) to read as follows:

" (29) Druggist Permit . A druggist permit may be issued by the liquor control commission, in its discretion, after the applicant shall have presented a certificate of fitness issued by the pharmacy commission, and the pharmacy commission shall have authority in the issuing of such certificate of fitness for this purpose. No druggist permit shall be issued covering a new drug store or a new location for an old drug store until both the pharmacy commission and the liquor control commission shall have been satisfied that a drug store at such location is necessary to the convenience and best interests of the public. A druggist permit shall allow the use of alcoholic liquors for the compounding of physicians' prescriptions and for the manufacturing of all U.S. P. and N. F. preparations and all other medicinal preparations unfit for beverage purposes, and shall allow the sale of all alcoholic liquors in containers of not more than one quart capacity, and shall forbid the drinking of such alcoholic liquors on the premises of any drug store."
" (30) Sales on Prescription . A registered pharmacy shall be allowed to fill the prescription of a licensed physician for alcoholic liquors at any time and without regard to the vote of any town prohibiting the sale of such liquors, provided such prescription shall include the name and address of the person for whom it is prescribed, and shall be signed with his full name by the physician issuing such prescription. Such prescription shall be filled only once, and the person making a sale on such prescription shall write on the face thereof the number of such prescription and the date of the sale or delivery of such liquor, and shall keep such prescription on file and available at all reasonable times to the inspection of the commission."

The plaintiff is a registered pharmacist operating a registered pharmacy in Manchester. He applied to the liquor control commission for a druggist permit under the Liquor Control Act, complying with the conditions established by the act in connection with such an application. The commission denied the application upon the ground that it did not conform to a regulation it had promulgated as follows: " All registered pharmacists or registered drug stores as defined in paragraph 16 of § 2 of the Liquor Control Act are hereby classified as stores. The sale of alcoholic liquors in such stores other than on prescription of a licensed physician or a medicinal compound shall be under package store permits only." The commission did not pass upon either the suitability of the applicant to have a permit or the suitability of the applicant's pharmacy as a place in which to sell alcoholic liquor under a permit, but it was stipulated upon the appeal that, if the court should find that a druggist permit rather than a package store permit should issue to the applicant, both person and place were suitable, and the trial court has so found. The trial court concluded that the regulation of the commission quoted was beyond its power to establish and that it could not refuse all druggist permits; and that it was not necessary to pass upon the question whether or not the legislature could delegate to the commission discretionary powers to grant or withhold permits from a class of applicants such as druggists. The commission has appealed from the judgment of the trial court.

Under the original act druggist permits were...

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