New Hampshire Wholesale Beverage Ass'n v. New Hampshire State Liquor Commission
| Decision Date | 28 September 1955 |
| Citation | 100 N.H. 5,116 A.2d 885 |
| Parties | NEW HAMPSHIRE WHOLESALE BEVERAGE ASSOCIATION et al. v. NEW HAMPSHIRE STATE LIQUOR COMMISSION et al. |
| Court | New Hampshire Supreme Court |
Tiffany & Osborne and Joseph Kovner, Concord, Gordon M. Tiffany, Concord, for plaintiffs.
Louis C. Wyman, Atty. Gen., and Warren E. Waters, Deputy Atty. Gen., Warren E. Waters, Concord, for defendants.
Taxpayers are legitimately concerned with the performance by public officers of their public duties. Their right to the preservation of an orderly and lawful government at the municipal level has been recognized as one which they may protect by injunctive relief, regardless of whether any loss to the municipality is shown or 'whether [their purses are] immediately touched.' Clapp v. Town of Jaffrey, 97 N.H. 456, 461, 91 A.2d 464, 467. No good reason appears why taxpayers should not possess a like right as to acts of public officers at the state level. See Conway v. New Hampshire Water Resources Board, 89 N.H. 346, 348, 199 A. 83.
The plaintiff corporation in this action is not alleged to be itself a taxpayer but only the representative of its unnamed taxpayer members. No separate issue has been raised as to whether a corporation may so represent its members, see Textile Workers Union v. Textron, 99 N.H. 385, 111 A.2d 823, and a decision on that question does not appear necessary. If the three plaintiffs who are individuals have no right as holders of off-sale permits to question the propriety of the issuing of permits to others to engage in the same business, Clapp v. Jaffrey, supra, 97 N.H. 460, 91 A.2d 464, they are also alleged to be taxpayers of the state. As such, they are entitled to maintain an action for the determination of whether the defendants have acted within their authority as public officers.
The principal question presented by this case is concerned with the authority of the commission under R.L. c. 170 in connection with the issuance of off-sale permits. Such permits authorize the permittee to sell certain alcoholic beverages 'for consumption only off the premises designated in the permit.' § 60. They may be issued 'to individuals, partnerships, or corporations' § 58, but 'only for grocery and drug stores not holding an on-sale permit.' § 60. The number of off-sale permits which the commission is authorized to issue is limited by § 76 which provides in part as follows: 'No person shall directly or indirectly hold more than two off-sale permits at one time.'
In applying this limitation to a corporation, the commission has treated the corporation as a separate entity, without regard to whether the person or persons who own or control it are the owners or in control of other corporate off-sale permittees. The plaintiffs contend that the same person or group of persons have thereby been permitted to hold 'directly or indirectly * * * more than two off-sale permits at one time' in violation of § 76.
'The fiction that the corporation is a being independent of those who are associated as its stockholders is not favored in this state.' Bowditch v. Jackson Co., 76 N.H. 351, 354, 82 A. 1014, 1017, L.R.A.1917A, 1174; Dow v. Northern Railroad, 67 N.H. 1, 36 A. 510. It is to be disregarded 'when justice demands it.' Lund & Co. v. Rolfe, 93 N.H. 280, 283, 41 A.2d 226, 227. In this case, it is not entitled to recognition as the basis for the issuance of off-sale permits if a means is thereby provided of avoiding a clear legislative purpose.
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