Riley v. Liquor Control Commission

• Decision Date: 09 December 1965
• Citation: 215 A.2d 402,153 Conn. 242
• Court: Connecticut Supreme Court
• Parties: William J. RILEY et al. v. LIQUOR CONTROL COMMISSION. Harry F. PRESTON et al. v. LIQUOR CONTROL COMMISSION. Supreme Court of Errors of Connecticut

Page 402

215 A.2d 402

153 Conn. 242

William J. RILEY et al. v. LIQUOR CONTROL COMMISSION.

Harry F. PRESTON et al. v. LIQUOR CONTROL COMMISSION.

Supreme Court of Errors of Connecticut.

Dec. 9, 1965.

Stephen J. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Harold M. Mulvey, Atty. Gen., for appellant (defendant in each case).

E. Gaynor Brennan, Jr., Stamford, for appellees (plaintiffs in each case).

Daniel E. Brennan, Jr., Bridgeport, with whom, on the brief, was James J. A. Daly, Bridgeport, as amici curiae.

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

ALCORN, Associate Justice.

On April 23, 1963, the plaintiff William J. Riley applied to the defendant for a permit to conduct a liquor package store in Enfield. On June 3, 1963, the plaintiff Harry F. Preston made a similar application for a package store liquor permit in Norwalk. The Great Atlantic and Pacific Tea Company, henceforth called the company, was the backer on each application. Section 30-48a of the General Statutes was passed by the 1963 General Assembly and became effective on June 24, 1963. The text of the section is printed in the footnote. ¹ In July, 1963, the defendant refused to accept, and returned, both applications for the stated reason that § 30-48a prohibits 'any backer from having an interest in more than two alcoholic beverage retail permits.' A 'backer' is defined by § 30-1(3), quoted in the footnote. ² Riley Preston and the company promptly applied for hearings before the defendant on their applications. The defendant denied them a hearing, and the applicants appealed to the Court of Common Pleas on the ground that the refusal to accept the applications was illegal, arbitrary and an abuse of discretion.

After each appeal was returned to court, the plaintiffs filed a substituted complaint in each case setting forth the appeal in a first count and adding a second count seeking an injunction restraining the defendant from invoking any of the provisions of § 30-48a and a declaratory judgment determining the rights of the parties. The Preston action was then ordered transferred from Fairfield County, where it was pending, to Hartford County, where the Riley action was pending and where the two actions were thereafter heard together because the issues were identical. The trial court found the issue on the appeal under the first count in each case in favor of the defendant, and the plaintiffs in neither case have appealed from that judgment. On the issues under the second count in each case, however, the trial court rendered a declaratory judgment that § 30-48a is unconstitutional but did not grant injunctive relief. From that judgment the defendant has appealed in each case, and, pursuant to stipulation of the parties, the cases come here on a single appeal record.

Thus, the only issue before us is the portion of the judgment declaring § 30-48a unconstitutional. We are constrained to notice, however, the inconsistency between that portion of the judgment and the remaining portion, which determined the appeal phase of the case in favor of the defendants. The judgment should admit of a consistent construction as a whole. See Harrison v. Union & New Haven Trust Co., 147 Conn. 435, 439, 162 A.2d 182. Just how the defendant could be held to have acted legally in refusing to hear an application because of the restrictions imposed by § 30-48a when, in the same judgment, that statute is held to be unconstitutional beggars logic. The trial court was undoubtedly led into the inconsistency by the plaintiffs' unnecessary use of multiple actions, a practice which we discountenanced in DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 270, 205 A.2d 774. As we observed in that case (p. 269, 205 A.2d 774), the issue of constitutionality could as well have been raised under the appeal count and, as we shall see, perhaps more effectively than by the means which these plaintiffs chose to take.

We turn now to the defendant's appeal from the judgment on the second count declaring § 30-48a unconstitutional. The error assigned is that, as a matter of law, and owing to the trial court's erroneous conclusions from the subordinate facts, the statute violates no constitutional rights of the plaintiffs and is a valid regulation of the liquor traffic.

The allegations of the second count in each complaint are substantially the same. In addition to reciting the provisions of § 30-48a in full, they state that the company holds more than two permits isued by the defendant and is authorized to sell packaged liquor for off-premises consumption in various of its stores located throughout the state, and that the defendant intends to enforce § 30-48a, which is unconstitutional because it deprives the plaintiffs of property without due process of law, is arbitrary, unreasonable, discriminatory, class legislation and lacking a basis in public necessity. Finally it is alleged that enforcement will result in injury to the plaintiffs.

The trial court's finding of the subordinate facts proved in support of these allegations is not disputed. It is found that the company made each application as a backer of Riley and Preston, who were to be the company's permittees; that the plaintiffs are suitable applicants, the premises are suitable, and the plaintiffs meet all statutory requirements applicable prior to the effective date of § 30-48a; and that the company is already the backer of fifty-seven other package store permittees in Connecticut. The rest of the subordinate facts found relate to the terms and effective date of § 30-48a and the action taken by the commission under it as already related.

In order to be entitled to injunctive relief the plaintiffs were required to allege and prove irreparable injury. Theurkauf v. Miller, 153 Conn. 159, 214 A.2d 834; Stapleton v. Lombardo, 151 Conn. 414, 416, 198 A.2d 697. It is clear from the foregoing recital that they neither alleged nor proved that essential. This failure is of no significance on the issue before us since no injunction was granted, and no appeal was taken from that nonaction by the trial court.

We next observe that the trial court has not found that the enforcement of the statute will result in any injury to the plaintiffs. Proof of such injury is essential to an attack on the constitutionality of § 30-48a. Coyle v. Housing Authority, 151 Conn. 421, 424, 198 A.2d 709. The court did, however, correctly conclude that a liquor permit is not property, but merely a personal privilege. General Statutes § 30-14; Beckanstin v. Liquor Control Commission, 140 Conn. 185, 192, 99 A.2d 119. One who has not been harmed by a statute cannot challenge its constitutionality. Salgreen Realty Co. v. Ives, 149 Conn. 208, 215, 177 A.2d 673. The question of the validity of the statute must be tested by its effect on its attacker under the particular facts of his case. Karen v. East Haddam, 146 Conn. 720, 727, 155 A.2d 921. Here we have no showing of any effect of the enforcement of this statute on these plaintiffs except that they are denied the purely personal privilege of a permit.

Of greatest significance, however, since the plaintiffs seek to have the question of constitutionality determined in a declaratory judgment action, is the question of parties. The only parties in these cases are Riley, Preston, the company and the defendant commission. The declaratory judgment action under which the plaintiffs have chosen to proceed is a special statutory proceeding in which we are not limited by the issues joined or the claims of counsel. Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165. It is a procedure which cannot be resorted to by one who asserts the unconstitutionality of a statute as a means of avoiding the necessity of showing that his interests are adversely affected by the statute under attack. Karen v. East...