State v. Faro

• Citation: 171 A. 660,118 Conn. 267
• Court: Supreme Court of Connecticut
• Decision Date: 26 March 1934
• Parties: STATE v. FARO.

171 A. 660

118 Conn. 267

STATE v. FARO.

Supreme Court of Errors of Connecticut.

March 26, 1934

Case Reserved from Superior Court, Hartford County; Edwin C Dickenson, Judge.

Joseph Faro was charged by information with a violation of the Liquor Control Act, and questions raised by demurrer to the information were reserved by the superior court for the advice of the Supreme Court of Errors.

Questions answered.

Hugh M Alcorn, State's Atty., and Harold E. Mitchell, Asst State's Atty., both of Hartford, for the State.

Edward J. Daly, and Stanley D. Fisher, both of Hartford, for accused.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, Chief Justice.

The state's attorney filed an information against the defendant alleging that, without a permit therefor, he sold, or kept for sale, certain alcoholic liquors contrary to the provisions of the General Statutes, Cum. Supp. 1933, § 737b. This statute reads as follows: " Disposing of Liquors Without, or Contrary to Permit . Any person who, without a permit therefor, shall, by sample, by soliciting or procuring orders, or otherwise, sell, or shall offer or expose for sale, or shall own or keep with intent to sell, any alcoholic liquor contrary to the provisions of this chapter and the regulations of the commission with respect to the class of permit so held by him, shall be subject to the penalties in section 739b." The defendant demurred to the information substantially upon the ground that the statute referred to did not make it a crime to sell alcoholic liquor without a permit, and that it was too vague and uncertain to permit any prosecution under its terms. The issues of law raised by the demurrer were reserved for this court. It is stipulated that the defendant did sell, and keep with intent to sell, certain alcoholic liquors without having a permit to do so issued to him by the liquor control commission.

The section of the General Statutes referred to is a part of the Liquor Control Act, General Statutes, Cum. Supp. 1933, § 669b et seq., certain features of which we recently discussed in Murphy v. Bergin. 118 Conn. 171 A. 433. The act establishes the liquor control commission, and provides that there shall be various classes of permits for the manufacture and sale of liquor, which the commission is to issue. It defines and limits the carrying on of business under each class of permits; thus it forbids the sale of alcoholic liquor under permits on certain days and except within certain hours, and it provides that permits shall be confined to the parts of any city or town prescribed by zoning ordinances, and that tavern, permits, with certain exceptions, will not be granted in close proximity to any church, school, or charitable institution. The act, however, nowhere contains an express provision that alcoholic liquor shall not be manufactured or sold except by persons to whom a permit has been issued by the commission nor that it shall not be manufactured or sold by one holding a permit except in accordance with the provisions of the act and the regulations of the commission. It does provide (section 709b) that " any permittee who has been convicted of violation of any of the provisions of this chapter" shall, " in addition to the penalties for such offense," incur a forfeiture of his permit. It also provides (section 701b) that each applicant for a permit shall file a bond conditioned upon compliance with the provisions of the act, and that, " if a permittee shall be convicted of the violation of any provision of this chapter," the bond given by him shall be forfeited.

The act contains various provisions as to the sale of liquor to certain persons in certain places, under penalties specifically stated. A number of these provisions make no mention of permittees, but are unlimited in their application. But in certain of them the prohibition is directed solely against permittees; thus the act makes subject to a penalty " every permittee" who sells to persons upon a list, prepared by the selectmen of a town, of those who are receiving town aid and are known to use alcoholic liquor, to certain persons whose relatives have requested that sales be not made to them, and to minors, intoxicated persons, or habitual drunkards. Article 3, pt. 1 (section 680b et seq.), contains provisions for determination by vote in any town whether or not permits, with certain exceptions, may be granted for the sale of liquor within its boundaries, and this article of the law begins with a statement that the sale of liquor " under the provisions of this chapter" shall be permitted in any town " until a contrary preference shall have been indicated by such a vote." Part 2 of the act (section 753b et seq.) provides for the imposition of a tax upon every person, company, or corporation engaged in the business of manufacturing or selling alcoholic liquor, based upon gross receipts from the business, and requires every person liable to the tax to return to the tax commissioner of the amount of such receipts; and the commissioner is required to notify the liquor control commission of the name and address " of each person" who has failed to file a return or to pay any tax prescribed or to perform any other duty required of him under this part of the act, and the commission is directed to suspend any permit which may have been issued to such person until he has complied with the requirements of the law.

The main contention raised by the demurrer comes down to this, that, in order to convict the defendant under the provisions of section 737b, it must be proved that he sold, or kept with intent to sell, alcoholic liquor, first, without a permit therefor, and second, contrary to the provisions of the act, and that, as the act nowhere expressly forbids any person to sell, or keep for sale, liquor without a permit, even if the defendant had no permit, the second element cannot be found to exist. While it is true that the act nowhere in terms forbids any person to sell, or keep for sale, liquor without having a permit to do so issued by the commission, it is perfectly obvious from the provisions of the act which we have summarized that this was the intention of the Legislature. If it were lawful for one not having a permit to sell alcoholic liquor, there would be no occasion for any one desiring to do so to apply for a permit and nothing to prevent one who has applied for and been refused a permit, because he is an unsuitable person to have one, from engaging in the sale of liquor. Such a person might sell at any hour of the day and on any day; he would be free to sell any kind of liquor and in any size container; he might sell to minors, intoxicated persons, habitual drunkards, and town charges, despite notice from the selectmen; if a tavern keeper, he might establish his business next door to a church, school, or charitable institution. No vote of any town could prevent the unrestricted sale of liquor within its boundaries. In short, if the contention of the defendant should be sustained, the entire legislative plan of liquor control would be abortive and a useless burden and expense to the state; and even the administration of the portion of the act dealing with taxation would be much more difficult and cumbersome.

The act originated in a bill reported to the General Assembly by a special commission appointed for that purpose pursuant to a special act. 21 Special Acts 1933, p. 745. The bill so reported was adopted by the Legislature with certain changes none of which affected section 737b. The caption of the section which is now section 737b, " Disposing of Liquors Without, or Contrary to Permit," appeared in it when it was reported and was attached to it when it was enacted. This caption was before the Legislature as a part of the bill, and as such adopted by it, and we...