Silver Bros. Co., Inc. v. Wallin, 82-368

Decision Date29 December 1982
Docket NumberNo. 82-368,82-368
Citation455 A.2d 1011,122 N.H. 1138
PartiesSILVER BROTHERS CO., INC., et al. v. Jean WALLIN, Commissioner New Hampshire State Liquor Commission, et al.
CourtNew Hampshire Supreme Court

McLane, Graf, Raulerson & Middleton P.A., Manchester, and Upton, Sanders & Smith, Concord (Kenneth F. Graf, Manchester, Wilbur A. Glahn, III, Concord, on brief, and Richard F. Upton, Concord, on the brief and orally), for plaintiffs.

Gregory H. Smith, Atty. Gen. (James E. Townsend, Asst. Atty. Gen., on brief and orally), for defendants.

PER CURIAM.

The plaintiffs in this interlocutory transfer from the Superior Court (Souter, J.) challenge the constitutionality of the three- year durational residency requirement imposed by RSA 181:9-a upon an applicant for a liquor wholesaler's permit. We dismiss the plaintiffs' petition for declaratory judgment because they lack standing to litigate the validity of the residency requirement.

The plaintiff Silver Brothers Co., Inc. (Silver Brothers) is a New Hampshire corporation engaged in the wholesale distribution of malt beverages throughout substantially all of the State. The plaintiffs Henry and Morris Silver, aged 82 and 85, respectively, are the sole shareholders of the corporation, each holding fifty percent of the capital stock. Because their stock holdings will comprise more than sixty percent of their respective estates, they desire to sell their interests in Silver Brothers in an effort to make their estate assets more liquid.

The plaintiff John J. Taylor, III, a legal resident of Massachusetts, is apparently willing to purchase Silver Brothers, provided he can qualify for a wholesaler's permit to distribute alcoholic beverages for resale in New Hampshire. See RSA 181:9-a. Although Taylor represents that he satisfies the qualifications for a permittee set forth in RSA 181:15 (Supp.1981), at the present time he is ineligible to hold a wholesaler's license because he has not been a New Hampshire resident for three years, as required by RSA 181:9-a. Taylor asserts that he is willing to become a resident of this State.

The defendants, members of the New Hampshire State Liquor Commission, take the position that RSA 181:9-a prohibits them from issuing a wholesaler's permit to Taylor or to a corporation in which he has an interest, unless he has been a New Hampshire resident for three years.

The plaintiffs brought a petition for declaratory judgment in superior court, see RSA 491:22, claiming that RSA 181:9-a violates the commerce, privileges and immunities, due process, and equal protection clauses of the United States Constitution, as well as the due process and equal protection provisions of the New Hampshire Constitution. The superior court transferred the case to this court without ruling on the constitutional validity of the three-year residency requirement.

The defendants moved to dismiss the action on the grounds that the plaintiffs individually lacked standing to assert the unconstitutionality of RSA 181:9-a, and that the statute complied with the Federal and State Constitutions. Consequently, we must construe the alleged facts in the light most favorable to the plaintiffs. Kenneth E. Curran, Inc. v. Auclair Transp., Inc., 121 N.H. 451, 454, 431 A.2d 124, 126 (1981); Evans v. Hall, 118 N.H. 920, 921, 396 A.2d 334, 335 (1978).

The defendants claim that Silver Brothers and Henry and Morris Silver lack standing because, as State residents for more than three years, they would not be, and have not been, denied a wholesaler's permit. The defendants argue that these plaintiffs may not raise the constitutional claims of another. We agree.

"A party will not be heard to question the validity of a law, or of any part of it, unless he shows that some right of his is impaired or prejudiced thereby." State v. Roberts, 74 N.H. 476, 480, 69 A. 722, 724 (1908) (emphasis added). These plaintiffs do not contend they were ever denied a wholesaler's permit for failure to satisfy the three-year...

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13 cases
  • Hughes v. N.H. Div. of Aeronautics
    • United States
    • New Hampshire Supreme Court
    • March 22, 2005
    ...493 (2003). The plaintiffs lack standing because they cannot raise the constitutional claims of another. Silver Brothers, Inc. v. Wallin, 122 N.H. 1138, 1140, 455 A.2d 1011 (1982). The general rule in New Hampshire is that a party has standing to raise a constitutional issue only when the p......
  • Schwartz v. State Dept. of Revenue Admin., s. 90-331
    • United States
    • New Hampshire Supreme Court
    • April 24, 1992
    ...interest and dividend tax to which he objects; thus he is no longer "impaired or prejudiced" by the tax. Silver Brothers, Inc. v. Wallin, 122 N.H. 1138, 1140, 455 A.2d 1011, 1012 (1982); see also Granite State Land Co. v. Hampton, 77 N.H. 179, 181, 89 A. 842, 844 (1913) (only person who can......
  • Asmussen v. Comm'r, N.H. Dep't of Safety
    • United States
    • New Hampshire Supreme Court
    • December 28, 2000
    ...a law, or of any part of it, unless he shows that some right of his is impaired or prejudiced thereby." Silver Brothers, Inc. v. Wallin, 122 N.H. 1138, 1140, 455 A.2d 1011, 1012 (1982) (quotation omitted). The claims raised in a declaratory judgment actionmust be definite and concrete touch......
  • Anglin v. Kleeman
    • United States
    • New Hampshire Supreme Court
    • October 3, 1995
    ...of law, there was insufficient evidence to establish that a medical contract or warranty existed. See Silver Brothers, Inc. v. Wallin, 122 N.H. 1138, 1140, 455 A.2d 1011, 1012 (1982) (law may not be challenged unless some right is impaired or Whether a contract or warranty of medical servic......
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