Tedford v. Reynolds, 1217

• Decision Date: 09 May 1958
• Docket Number: No. 1217,1217
• Citation: 141 A.2d 264,87 R.I. 335
• Parties: Walter TEDFORD et al., Board of License Commissioners of the Town of Hopkinton v. Charies F. REYNOLDS, Liquor Control Adm'r. M. P.
• Court: Rhode Island Supreme Court

Page 264

141 A.2d 264

87 R.I. 335

Walter TEDFORD et al., Board of License Commissioners of the Town of Hopkinton v. Charies F. REYNOLDS, Liquor Control Adm'r.

M. P. No. 1217.

Supreme Court of Rhode Island.

May 9, 1958.

Edward M. Botelle, Town Solicitor, Westerly, for petitioners.

Edward F. J. Dwyer, Ass't Atty. Gen., Benjamin Winicour, Providence, for respondent.

Newton, Brodsky & Kiernan, Archibald B. Kenyon, Jr., Providence, William J. McGair, Providence, amici curiae.

PAOLINO, Justice.

This is a petition for certiorari to review the action of the state liquor control administrator in directing the members of the town council of the town of Hopkinton, acting in their capacity as a board of license commissioners, to issue a class B victualler's alcoholic beverage license to John F. Morgan. The writ was issued and pursuant thereto all pertinent records have been certified to this court.

It appears therefrom that John F. Morgan, hereinafter referred to as the applicant, on February 6, 1956 applied to petitioners, who are members of the town council and who hereinafter will be referred to as the board, for a class B victualler's beverage license for premises located on Route 3 in the town of Hopkinton. After such application was denied by the board, the applicant appealed to the liquor control administrator who, on April 4, 1956, rendered a decision upholding the board's action. Thereafter on December 24, 1956 the applicant again applied for a similar license for the same premises and it was denied by the board on January 28, 1957. The applicant did not appeal therefrom.

However, on or about April 1, 1957 the applicant again applied for the same class of license. After a hearing thereon the board, on April 23, 1957, in denying the same, stated in its decision: '* * * it is the feeling of this Council that the Town of Hopkinton has all the beverage licenses that it should have at the present time and that the policy of not increasing the number of alcoholic beverage licenses in the Town should be adhered to and further that said policy was restated at the meeting of this Town Council on December 3, 1956 by vote duly taken * * *.'

Thereafter, on July 16, 1957, the administrator rendered a decision sustaining the applicant's appeal from the April 23 decision and he directed the board to issue such license at its earliest convenience. In referring to his prior decision in 1956 wherein he upheld the board's action in denying a similar application, he noted that at that time no witnesses appeared in behalf of the applicant and no petition was presented favoring the granting of the license, as in the instant appeal. He also stated: 'The policy adopted by the Town Council is not a limit of licenses as prescribed by statute,' and that from the testimony 'it appears that public convenience would be served by the granting of this license.'

The board's instant petition is based on its contention that the administrator's decision of July 16, 1957 is unlawful and in support thereof it presents the following points.

Under point I the board argues that inasmuch as the license year for which the applicant applied terminated on December 1, 1957, and no application has been filed by him either for a renewal or for the granting of a license for the license year commencing on December 2, 1957, there is no question at this time for us to determine. In other words the board, which brought this petition on the ground that the administrator's action was unlawful, argues that the question is now moot, since the license year to which the license applied has expired. It bases its contention in part on the following provision of general laws 1956, § 3-5-8: 'Every license except retailer's class F licenses and retailer's class G licenses shall expire on December 1 next after its issuance.'

General laws 1956, § 3-5-14, relates to the issuance of manufacturer's, wholesaler's or retailer's class G and class I licenses, and § 3-5-15 then provides: 'The right, power and jurisdiction to issue all other licenses authorized by this title within the maximum number to be fixed as hereinafter provided, shall be in the town councils or license boards of the several towns * * * .' The board contends that under the provisions of § 3-5-15 jurisdiction to hear and determine applications for such license, as well as applications for renewals, is in the first instance vested in the town council sitting as a licensing board; and that because there has been no application for a license for the license year commencing December 2, 1957, either before the board or the administrator on appeal, the administrator has no power to order the board to issue a license for such year.

We no not agree with this contention. Under the provisions of G.L.1956, § 3-7-21, the liquor control administrator is by express language granted 'the right to review the decision of any local board, and after hearing, to confirm or reverse the same in whole or in part, and to make such decision or order as to him shall seem proper * * *.' By necessary implication an applicant for a license, such as in the instant case, acquires the right of review under § 3-7-21.

In Kaskela v. Daneker, 76 R.I. 405, 71 A.2d 510, this court stated in substance that the powr of review vested in the liquor control administrator is not limited to a mere review of errors of law, and that the administrator may in his discretion hear cases de novo. To adopt the board's contention would be to effectively deprive the administrator of his power to review and would unjustly take away from an applicant for a license the right to have his application reviewed for errors of law or heard de novo in accordance with the express language of § 3-7-21. Board of Police Com'rs of City of Warwick v. Reynolds, R.I., 133 A.2d 737, 740, 741.

It is undisputed that the application here was filed before the passage of public laws 1957, chap. 150. Therefore the board originally and the administrator on appeal retained the power to grant such application by the express provisions of chap. 150, supra, which provided in part 'that the several cities and towns may issue such retailers' license class B or D where an application for such class B or D licenses was filed prior to the passage of this act.'

Moreover an important public interest is involved here affecting not only the town of Hopkinton but also all the cities and towns of this state. The board contends that it has lawfully limited the number of licenses of each class within its jurisdiction in accordance with the provisions of G.L.1956, § 3-5-16. On the other hand the administrator has ruled that the board has not done so. In our opinion the public interest...