State Ex Rel. Heimov v. Thomson

• Citation: 131 Conn. 8,37 A.2d 689
• Court: Supreme Court of Connecticut
• Decision Date: 05 May 1944
• Parties: STATE ex rel. HEIMOV v. THOMSON, Town Clerk.

131 Conn. 8

37 A.2d 689

STATE ex rel. HEIMOV

v.THOMSON, Town Clerk.

Supreme Court of Errors of Connecticut.

May 5, 1944.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, Hartford County; Munger, Judge.

Action by State, on the relation of Max Heimov, against Carlyle C. Thomson, Town Clerk of the Town of West Hartford, for a writ of mandamus to compel defendant to certify relator's application for a restaurant permit to the State Liquor Control Commission. Judgment for defendant, and relator appeals.

Error, judgment set aside, and case remanded with direction.

Simon J. Beizer, of Hartford, for appellant (plaintiff).

Walfrid G. Lundborg, of Hartford, for appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON, and DALY, JJ. (Judge EDWARD J. DALY of the Superior Court sat for Judge ELLS.)

DALY, Judge.

On June 30, 1933, the state liquor control commission issued a restaurant permit to the plaintiff Max Heimov for the sale of beer and wine for consumption on the premises known as 980 Farmington Avenue, West Hartford. On May 10, 1933, the commission had issued a similar permit for the premises known as 967 Farmington Avenue. On these dates there were no zoning regulations in effect in West Hartford which regulated or restricted the sale of alcoholic liquors within the town.

Amendments to the statutes effective July 1, 1935, provided for restaurant permits for the sale of beer only and restauant permits for the sale of all alcoholic liquors. On July 23, 1935, the commission issued a restaurant permit for the consumption of all kinds of liquor on the premises known as 966A Farmington Avenue. On August 29, 1935, it issued a restaurant permit for the sale of beer only on the premises known as 980 Farmington Avenue. These permits have been renewed each year.

On August 6, 1935, zoning regulations were enacted in the town of West Hartford providing, in § 25, that: ‘In a business or industrial district, no building or premises shall be used * * * for the sale of alcoholic beverages to be consumed on the premises, if any part of such premises is situated * * * within fifteen hundred feet as measure along the center line of such street or adjacent street, of any lot or plot having a frontage on such street or adjacent street and used for the purpose of a place selling alcoholic beverages to be consumed on the premises.’ There is a provision to the effect that the regulation shall not be retroactive. The premises known as 980 Farmington Avenue and the premises known as 966A Farmington Avenue are on the same side of the street, about three hundred and fifty feet apart, and have been in a business district under the zoning regulations since they were enacted. Since May 17, 1943, the defendant has been town clerk of the town of West Hartford. As part of his duties he is required to certify as to the laws and ordinances of the town. The liquor control commission before issuing a permit for premises in a town requires that the town clerk certify that the zoning ordinances or by-laws of the town do not prohibit the sale of alcoholic liquor at the location in question. On May 17, 1943, the plaintiff presented to the defendant for certification on application for a restaurant permit for the sale of all alcoholic liquors at 980 Farmington Avenue. The defendant refused to make the certification, and this action was brought to compel him to do so.

The trial court concluded that the sale of all alcoholic liquors under a restaurant permit therefor would be an extension of the existing nonconforming use of the premises at 980 Farmington Avenue and would violate the zoning ordinances of the town. If it be assumed that the zoning regulations contain provisions relating to nonconforming uses and extension thereof, such provisions were not brought in issue in these proceedings; neither the trial court nor this court could take judicial notice of them, Appeal of Phillips, 113 Conn. 40, 44, 154 A. 238; and only the provision of § 25, quoted above was invoked. The question of an extension of a nonconforming use was not involved. The judgment cannot be sustained on this ground.

Use of the premises for the sale of beer only as well as use for the sale of all alcoholic liquors to be consumed on the premises constitutes use ‘for the purpose of a place selling alcoholic beverages to be consumed on the premises.’ If in enacting § 25 of the zoning regulations there was a purpose to make a distinction between the use of premises where the only alcoholic beverage permitted to be sold and consumed on the premises is beer and the use of premises where all alcoholic beverages are permitted to be so sold and consumed, it is to be assumed that appropriate language would have been used. Even if such a distinction would be desirable there is no justification for reading it into the zoning regulation. ‘To engraft such an exception upon the statute by judicial construction is inadmissible. We must construe and apply the statute as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions.’ Granniss v. Weber, 107 Conn. 622, 629, 141 A. 877, 879.

The court also concluded that in refusing to certify the premises the defendant was exercising a judgment not subject to control by mandamus. Mandamus will not...