State v. Zazzaro

• Decision Date: 26 June 1941
• Citation: 20 A.2d 737
• Court: Connecticut Supreme Court
• Parties: STATE v. ZAZZARO.

20 A.2d 737

STATE

v. ZAZZARO.

Supreme Court of Errors of Connecticut.

June 26, 1941.

[Copyrighted material omitted.]

Case reserved from Superior Court, Hartford County; Inglis, Judge.

Proceeding by the State against Anthony P. Zazzaro, wherein an information charging defendant with violation of the Liquor Control Act was brought to the Superior Court in Hartford County, where defendant filed a demurrer to the information and the case was reserved by the court for advice of the Supreme Court of Errors.

Superior Court advised to overrule demurrer to all counts.

Argued before MALTBIE, C. J, and AVERY, BROWN, JENNINGS, and ELLS, JJ.

William S. Hyde, of Manchester, and Edwin M. Ryan, of Hartford (Nicholas E. St. John, of Hartford, on the brief), for defendant.

Hugh M. Alcorn, State's Atty., Hugh Meade Alcorn, Jr., and John P. Hodgson, Asst. State's Attys, all of Hartford, for the State.

ELLS, Judge.

The defendant is charged in thirteen counts with violations of § 968e of the Cumulative Supplement, 1939, quoted in full in the footnote¹, the alleged offenses being that he, a stockholder in a brewing company, extended credit for a period of more than thirty days, through various banks in Hartford, to designated holders of retail liquor permits issued by the liquor control commission. The charges are set forth in the information substantially in the language of the statute. There is involved a construction of § 968e, and the applicability of § 1083c of the Cumulative Supplement, 1935, also quoted in full in the footnote². The defendant's claims, as raised by his demurrer, fall into several categories and the questions reserved by stipulation are directed at the issues thus raised. In substance it is claimed that § 968e is so vague and uncertain that it is unenforceable; that the legislature did not intend to define a crime but to state a regulation; that the section contains an exclusive penalty, the revocation or suspension of the permit, and that therefore the general penalty section, 1083c, is inapplicable; and that § 968e is unconstitutional.

The second and third claims are sufficiently related to warrant discussion as a single issue. A reading of § 968e shows that it is plainly aimed at an evil long recognized in the history of liquor control legislation, the "tied house." This is the subject of legislative prohibition in many states. Rigid restriction in this respect was recommended by the special liquor study commission in its model bill, reported to the Connecticut General Assembly in 1933, Connecticut House Journal, 1933, pp. 1124, 1139, and adopted in substance by the General Assembly, General Statutes, Cum. Supp.1933, § 703b; Cum.Sup.1935, § 1047c; Cum.Supp.1939, § 968e. These sections are perhaps, strictly speaking, regulatory, but there is not any reason why the legislature could not make the violation of these regulations criminal acts. The Liquor Control Act itself is regulatory, but contains many criminal penalties of undoubted validity.

In its application to this case, § 968c prohibits the permittee from receiving credit in excess of thirty days, and one in the position of the defendant from extending credit, directly or indirectly, to a permittee. The demurrer admits that the defendant has done the forbidden act, and the only remaining question upon this aspect of the case is whether his dereliction is punishable as a crime. As § 968e now stands, accepting a credit requires the revocation of a permit held by the permittee, but that of course does not apply to the lender. Unless the penalty of § 1083c applies, there is no penalty to be inflicted upon him; and he is the only one we are concerned with in this case. The provision concerning a mandatory revocation of the license, contained in § 968e, was inserted in 1939, and previously was not in the Liquor Control Act. Before the provision was inserted, a violation of the existing enactment would have been ground for the revocation of a permit in the discretion of the commission. General Statutes, Cum.Supp. 1935, § 1026c; Cum.Supp. 1935, § 1052c as amended by Cum.Supp. 1939, § 971e; Cum. Supp.1935, § 1053c as amended by Cum. Supp.1939, § 972e; and the purpose of the insertion was plainly to make revocation mandatory in case of a violation of the statute, instead of leaving it as a discretionary matter. The defendant's claim that the commission's duty to revoke permits relieves him of criminal responsibility must necessarily be based upon the erroneous assumption that the legislature saw fit to forbid a serious evil and at the same time made the prohibition useless by rendering it unenforceable. It is obvious that § 968e was designed to place definite restrictions upon nonpermittees as well as permittees and the defendant cannot be allowed to place himself beyond the reach of the law upon the wholly untenable theory that only permittees are subject to penalties thereunder.

We conclude that § 968e and § 1083c, read together, provide for a criminal penalty for the violation in question. The defendant relies upon Central Trust Co. v. Mann's Restaurants, 166 Misc. 381, 2 N.Y.S.2d 447, 449. The language of the New York statute varies from ours, and we cannot consider the case as weighty authority against the view we take.

Based upon the accepted legal proposition that where a criminal statute is too indefinite in its terms to enable one to determine what it requires, it violates the due process clause (International Harvester Co. v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284; Id, 234 U.S. 579, 34 S. Ct. 944, 58 L.Ed. 1479), it is contended that the phrase describing the forbidden act, to "lend money or otherwise extend credit, directly or indirectly" defies accurate definition, is so vague and uncertain, arbitrary and unreasonable, and so lacking in relation to any lawful purpose as to be unconstitutional. The crux of the objection seems to be not that the prohibition is too vaguely stated, but that its clarity and comprehensiveness are too sweeping, in that it seems "to include within its scope any credit dealings * * * even though the transaction had no relation to the liquor business." The act does expressly prohibit such transactions. It closes the loopholes. Its prohibitions relate directly to a lawful and important legal purpose, the abolition of the "tied house." Given a clear and lawful purpose, such a statute is not arbitrary and unreasonable merely because it comprehensively prohibits a permittee from receiving credit from a stockholder in a brewing company, and the latter from extending such credit. Obviously the acts here charged, the indorsements of notes, are extension of credit. This very case is a good example of the evil the legislature sought to eliminate. The demurrer admits that this defendant, a stockholder in a brewing company, extended credit to thirteen different permittees. Whether the money thus secured went for the purchase of liquor, or for groceries or automobiles, is of no consequence; the potential result was to tie the permittee to the brewery, and that is a sternly forbidden act. Even if it could be proved, in a given case, that such was not the purpose, the legislature could and obviously did regard it as so likely to be the reason that the act must be prohibited. We fail to discover anything arbitrary or unreasonable in this. The prohibition has direct and rational relation to its purpose. The test of certainty in a criminal statute is discussed in State v. Andrews, 108 Conn. 209, 213, 142 A. 840, 841, where it is said that such statutes will not be held void for uncertainty "if any practicable or sensible effect may be given to them." Such effect is plainly apparent in the present case.

The further claim is made that the statute is discriminatory, and so it is, but its discrimination is not unconstitutional within the holding of any authority the...