State v. Poulos

• Decision Date: 26 April 1952
• Citation: 97 N.H. 352,88 A.2d 860
• Parties: STATE v. POULOS et al.
• Court: New Hampshire Supreme Court

Page 860

88 A.2d 860

97 N.H. 352

STATE v. POULOS et al.

Supreme Court of New Hampshire.

April 26, 1952.

As Modified on Denial of Rehearing June 3, 1952.

Gordon M. Tiffany, Atty. Gen., and Arthur J. Reinhart, City Solicitor, Portsmouth, for the State.

Hayden C. Covington, Brooklyn, N. Y., Henry M. Fuller, Portsmouth (Covington orally), for the defendants.

JOHNSTON, Chief Justice.

Since the defendant Derrickson has died pending his appeal, the appeal on his behalf is abated. 24 C.J.S., Criminal Law, § 1703, p. 381 and cases cited; State v. T. W. Kriechbaum, 219 Iowa 457, 258 N.W. 110, 96 A.L.R. 1317, 1322.

The Trial Court found that the city council in refusing to grant licenses to the defendants acted artirarily and unreasonably. The latter had offered to pay any reasonable fees customarily paid for the use of the park as well as any expenses incurred by the city in permitting the holding of the requested meetings. However, if the Court was correct that the remedy for such wrongful conduct was in appropriate civil proceedings and not in holding open air meetings in violation of the ordinance, the exceptions of the surviving defendant should be overruled. According to the Court, the defendants misconceived their remedy. It has been conceded by the defense on this transfer, as well as on the first one, that the ordinance is valid on its face. It is identical in language with the statute that was construed as valid in State v. Cox, 91 N.H. 137, 16 A.2d 508, which was affirmed in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. It is not disputed that the ordinance applies to the park that was the scene of the open air meetings in question. No objection has been made to the application of the ordinance to the areas where the meetings took place, and no exception taken to any finding or ruling with respect thereto.

We see no reason for overruling the law as stated in this jurisdiction that a wrongful refusal to license is not a bar to a prosecution for acting without a license. 'A wrongful refusal of a license is not equivalent to a license. Instead of prosecuting by proper proceedings his claim of right to a license, the defendant chose to disregard the law and must submit to the penalty.' State v. Stevens, 78 N.H. 268, 270, 99 A. 723, 725, L.R.A.1917C, 528. It should be noted that the statutory provision for a penalty in case of a sale by an unlicensed person was held valid, even if a clause of another section with respect to a requirement of residence should be found invalid. This case clearly set forth the procedure to be followed in New Hampshire by one who has wrongfully been denied a license. What was there stated, 78 N.H. on page 270, 99 A. 723, 725, L.R.A.1917C, 528, applies to the present case. 'The defendant had an ample remedy in the writ of certiorari.'

The Yale Law Journal in an article on 'Res Judicata,' v. 49, p. 1266, asserts as follows: 'The action of state licensing agencies has uniformly been held to be conclusive against collateral attack * * *. No distinction has been made between errors of fact or of law in the mistaken refusal to grant the license. The same result has been reached even where the denial of a license was based on an unconstitutional section of a statute, provided that the entire statute was not thereby rendered invalid.' The writer also cites State v. Stevens, supra, as authority. See also, Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627.

This New Hampshire case of State v. Stevens, supra, has been cited as authority in the Massachusetts case of Malden v. Flynn, 318 Mass. 276, 61 N.E.2d 107. On pages 280 and 281 of 318 Mass., 61 N.E.2d on page 111, the court there stated: 'The invalidity of the rule of the board of health, however, gives the defendant no right to transport garbage through the streets of Malden without a permit in violation of section 31A. Commonwealth v. Blackington, 24 Pick. 352; Commonwealth v. McCarthy, 225 Mass. 192, 114 N.E. 287; Commonwealth v. Gardner, 241 Mass. 86, 134 N.E. 638; State v. Orr, 68 Conn. 101, 35 A. 770, 34 L.R.A. 279; State v. Stevens, 78 N.H. 268, 99 A. 723, L.R.A.1917C, 528. The defendant was entitled to have his application for a permit considered fairly and impartially by the board and might have maintained a petition for mandamus if the board refused to consider it, * * *.'

The same principle of law is clearly stated in Lipkin v. Duffy, 118 N.J.L. 84, 191 A. 288, the headnote of which is as follows: 'The provision of an ordinance that a license to carry on the business of conducting a junk yard should not be issued to a non-resident is unreasonable and discriminatory, but the remedy is by mandamus to compel consideration of the application for a license and not by the conduct of such business in violation of the valid portions of the ordinance without any license whatever.'

While 33 Am.Jur. 395 in the article on 'Licenses' takes the position that the cases are not unanimous, it uses State v. Stevens, supra, in support of the following: 'According to other cases, however, when a license is refused by the licensing officer, although the applicant has done all that is necessary to entitle him thereto, he has no right to proceed to do the act for which the license is required.' 53 C.J.S., Licenses, § 68, p. 727, in its article on 'Licenses' discusses the subject of defenses to criminal proceedings for violation of license laws. The following is stated: 'The fact that accused had applied for the requisite license, tendered the fee, and had been refused a license constitutes no defense to a criminal prosecution for acting without a license unless the license authorities declined to issue a license on the the ground that none was required; and it is likewise no defense to show that an application for a license would have been unavailing.' As authority for the first proposition, Commonwealth v. McCarthy, 225 Mass. 192, 114 N.E. 287, which was referred to in Malden v. Flynn, supra, is used.

The defense relies heavily on the case of Cantwell...