State v. Cote

• Decision Date: 14 April 1923
• Citation: 120 A. 538
• Parties: STATE v. COTE.
• Court: Maine Supreme Court

120 A. 538

STATE

v. COTE.

Supreme Judicial Court of Maine.

April 14, 1923.

Exceptions from Supreme Judicial Court, York County, at Law.

Prosecution against Emile L. Cote for setting lobster traps after suspension of license. License suspended, and defendant excepts. Judgment for State, sentence to be imposed below.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Edward S. Titcomb, Co. Atty., of Sanford, for the State.

John P. Deering, of Biddeford, and Arthur E. Sewall, of Portsmouth, N. H., for respondent.

DEASY, J. The respondent is accused of setting traps for lobsters after the suspension of his license. His defense is that his license was suspended without notice and hearing, and therefore illegally.

The power of the director of sea and shore fisheries to grant licenses to take lobsters is contained in Acts 1921, c. 98. His authority to revoke or suspend licenses is derived from section 4 of the same chapter.

With the revocation of licenses we are not concerned. Revocation is a consequence of conviction. The respondent has not been convicted. His license has been suspended, not revoked.

The statute says, in effect, that the license shall be suspended while a prosecution is pending, and further provides that—

"The director of sea and shore fisheries in his discretion may, before conviction, suspend the license of any person, firm or corporation whenever he has evidence that such person has violated any of the laws relating to lobsters."

The suspension in this case was by virtue of the above-quoted clause. At the time of the suspension no formal complaint had been made.

The respondent's counsel challenge the validity of this statute. They invoke the constitutional guaranty that an accused person shall not "be deprived of his life, liberty, property or privileges, but by * * * the law of the land."

They contend rightfully that notice and opportunity to be heard are of the very essence of "the law of the land" a phrase identical in meaning with the "due process of law" of the federal Constitution.

They argue that by the terms of the act, if valid, a fisherman's license may be suspended and his property or privileges thus taken away without notice or opportunity to be heard. For this reason they contend that the act is unconstitutional.

But numerous authorities, some of which are below cited, hold that a license is not within the protection of the Constitution.

"A mere license by a state is always revocable." Doyle v. Ins. Co., 94 U. S. 540, 24 L. Ed. 148.

"As a license lacks the essential elements of a vested right or property, it may be revoked." 8 Cyc. 1124.

See Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57; Board of Excise v. Barrie, 34 N. Y. 667; State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344; Wallace v. Reno, 27 Nev. 71, 73 Pac. 528, 63 L. R. A. 337, 103 Am. St. Rep. 747; La Croix v. County Comrs., 50 Conn. 328, 47 Am. Rep. 648; Sprayberry v. Atlanta, 87 Ga. 120, 13 S. E. 199; Calder v. Kurby, 5 Gray (Mass.) 597; Martin v. State, 23 Neb. 371, 36 N. W. 557; Portland v. Cook, 48 Or. 550, 87 Pac. 772, 9 L. R. A. (N. S.) 733; Dreyfus v. Montgomery, 4 Ala. App. 270, 58 South. 730.

There are a few opposing authorities. But it can hardly be questioned that where, as in this case, the statute requiring the license provides for its revocation without notice or hearing (a provision that is either expressly or impliedly a part of the license itself), a person accepting such a license cannot complain if it is terminated in accordance with its own conditions.

The license in such case is no more deprived of property or privileges than is the tenant whose lessor takes possession of the leasehold premises upon expiration or forfeiture of the term.

"By accepting and acting under a license, the licensee consents to all conditions imposed thereby, including provisions for its revocation." Stone v. Fritts, 169 Ind. 365, 82 N. E. 794, 15 L. B. A. (N. S.) 1147, 14 Ann. Cas. 295.

"When, as here, the license is granted under an ordinance that gives or reserves the power [of revocation], it is to be regarded as subject to the power and terminable by its exercise." Wallace v. Reno, 27 Nev. 71, 73 Pac. 528, 63 L. R. A. 337, 103 Am. St. Rep. 747.

"A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license was that it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity or privilege." Commonwealth v. Kinsley, 133 Mass. 578.

See, also, Schwuchow v. Chicago, 68 Ill. 450; State v. Schmidtz, 65 Iowa, 556, 22 N. W. 673; Ruggles v. State, 120 Md. 553, 87 Atl. 1080; McMillan v. Knoxville, 139 Tenn. 319, 202 S. W. 67.

The respondent's license contained either expressly or impliedly (for the statute reads itself into the license) the provision for suspension hereinabove quoted. In effect, the license provides that the director in his discretion may suspend it whenever he has evidence that the holder of it has violated the lobster law.

The cases cited by the respondent's counsel are clearly distinguishable. State v. McFihinney, 241 Mo. 592, 145 S. W. 1142, involved the disbarring of an attorney at law. An attorney is not a mere licensee. He is a court officer. To deprive him of his office without notice or hearing is to invade his constitutional rights. Smith v. Medical Examiners, 140 Iowa, 66, 117 N. W. 1116-1118. The appellant, a physician, by the terms of the very act under which his certificate was sought to be revoked, was held entitled to notice and opportunity to be heard. People v. Wilson, 179 App. Div. 416, 166 N. Y. Supp. 211, and Balling v. Elizabeth, 79 N. J. Law, 197, 74 Atl. 277, are also called...