Town of West Hartford v. Willetts

• Decision Date: 08 March 1939
• Citation: 5 A.2d 13,125 Conn. 266
• Court: Connecticut Supreme Court
• Parties: TOWN OF WEST HARTFORD et al. v. WILLETTS et al.

5 A.2d 13

125 Conn. 266

TOWN OF WEST HARTFORD et al. v. WILLETTS et al.

Supreme Court of Errors of Connecticut.

March 8, 1939

Appeal from Superior Court, Hartford County; Frank P. McEvoy, Judge.

Action by the Town of West Hartford and others against William J Willetts, receiver, and others for declaratory judgment as to whether receiver has lost the former right to sell alcoholic beverages consumed upon the premises, and whether the plaintiffs have a legal duty to certify that the zoning ordinances and by-laws of the town do not prohibit the sale of alcoholic liquor on certain premises, brought to the superior court and tried to the court. From a judgment refusing to answer the first question and answering the second question in the affirmative, named defendant appeals. Defendant Anderson filed a motion to dismiss appeal.

Motion to dismiss appeal denied.^[1]

Error and case remanded.

Under ordinance providing that in a business zone no building excepting those so used prior to ordinance, should be used for sale of alcoholic beverages to be consumed on the premises if within 1,500 feet of other premises used for like purpose, and that, if use of excepted buildings for such purpose has been discontinued for 30 days, such use shall not be resumed except in conformity with regulation, where 38 days had elapsed since actual use of corporate premises for sale of alcoholic liquors, whether use of premises for such purpose had been discontinued within meaning of ordinance was for trier of facts.

The receiver was made a defendant, summoned into court, filed an answer, and the question whether he or the corporation he represents had lost the right to sell liquors on the premises was litigated before the court. Whether or not he or the corporation had sought a certificate from the town officers that the premises might be used for the sale of liquor or a permit from the liquor control commission, the right to use the premises for that purpose may well be valuable. If they may be so used the amount which would be realized on a sale in receivership, should that be ordered, might well be considerably greater than if the right to use them for that purpose no longer existed. The effect of the decision of the trial court as regards the receiver and the corporation was that they cannot have the question of the existence of the right to sell liquor determined until an application for a certificate or a permit for such sale had been made. One of the assignments of error apparently claims that the corporation had not ceased to use its premises for a sale of liquor within the meaning of the ordinance in question. That aside, the present determination of the question whether the right to sell liquor had been lost may be of very real benefit to the receiver as representing the corporation and its creditors. This is an action for a declaratory judgment and the receiver may well claim to have been aggrieved by the refusal of the trial court to pass upon the question. Sigal v. Wise, 114 Conn. 297, 302, 158 A. 891; Moeller v. English, 118 Conn. 509, 514, 173 A. 389 93 A.L.R. 1513; Sage-Allen Co. v. Wheeler, 119 Conn. 667, 673, 179 A. 195, 98 A.L.R. 897.

The motion to dismiss the appeal is denied.

Stanley D. Fisher, of Hartford, for appellant.

Max L. Goldenthal, of Hartford, for appellee.

Richard H. Deming and Arthur E. Howard, Jr., both of Hartford, for plaintiffs.

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

MALTBIE, Chief Justice.

This is an action for a declaratory judgment, brought by the plaintiff town and its town clerk and building inspector. There is no finding of facts and the appeal must be determined upon the basis of the allegations in the pleadings, substantially all of which are admitted. On August 6, 1935, the town enacted an ordinance which, so far as pertinent to our inquiry, provided in substance that, in a business or industrial zone no building should be used for the sale of alcoholic beverages to be consumed on the premises if it was within fifteen hundred feet of other premises used for a like purpose, but added this: ‘ The provision of this regulation shall not be deemed to be retroactive, except that where a place existing for the selling of alcoholic beverages for consumption on the premises previously in use has been discontinued for a period of thirty days, such use shall not be resumed except in conformity with this regulation.’ On the date this ordinance was enacted the premises of the Englewood Diners, Incorporated, and of Welch's Tavern, which were within fifteen hundred feet of each other, were both used for the sale of alcoholic beverages within the purview of the ordinance. On September 10, 1936, the use of Welch's Tavern for this purpose was discontinued. Since August 1, 1938, no alcoholic beverages have been sold on the premises of the Englewood Diners, and on August 26, 1938, the defendant Willetts was confirmed as receiver. On September 7, 1938, application was made by the defendant Anderson to the town clerk for a certificate that the zoning ordinances of the town did not prohibit the sale of liquors on the premises occupied by Welch's Tavern. The plaintiff sought a judgment declaring whether Englewood Diners and its receiver had lost the right to sell liquor on its premises and whether the defendant Anderson was entitled to the certificate for which she applied. The judgment of the court was that the first question was not pertinent to any issue properly presented upon the pleadings and that the defendant Anderson was entitled to the certificate she sought.

The concluding provision of the ordinance above quoted is certainly not very clearly expressed, but the purpose is plain. If, at the time of its enactment, there were two places within fifteen hundred feet of each other both being used for the sale of alcoholic beverages for consumption on the premises that use might be continued as to...