Ullman ex rel. Eramo v. Payne

• Decision Date: 06 November 1940
• Citation: 16 A.2d 286,127 Conn. 239
• Parties: ULLMAN, State's Atty., ex rel. ERAMO v. PAYNE.
• Court: Connecticut Supreme Court

16 A.2d 286

127 Conn. 239

ULLMAN, State's Atty., ex rel. ERAMO v. PAYNE.

Supreme Court of Errors of Connecticut.

November 6, 1940

Appeal from Superior Court, New Haven County; Kenneth Wynne, Judge.

Proceeding by Abraham S. Ullman, State's Attorney, on the relation of Charles Eramo, against Ruth E. Payne for a writ of mandamus, requiring defendant to certify to the Liquor Control Commission that ordinances and by-laws of the city of Meriden do not prohibit the sale of liquor at a certain location, brought to the superior court and tried to the court. From an adverse judgment, the plaintiff appeals.

Error and case remanded, with direction to enter judgment for plaintiff.

William J. McKenna, of New Haven, for appellant.

Edward M. Rosenthal and Carl H. Mueller, of Meriden, for appellee.

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

JENNINGS, Judge.

This case involves the meaning of the word ‘ discontinued’ as used in the Meriden zoning ordinance. It was tried on an agreed statement of facts, adopted as the finding, which may be summarized as follows: A package store was conducted by Charles Malloy in the property at 123 1/2 West Main Street, Meriden, from June 30, 1936, to June 30 1939. He then vacated the premises, taking with him his personal property except two side wall cases, used for keeping liquor on display for sale, which were purchased by his landlord and his sign, containing his name together with the words ‘ Liquor and Package Store’ which remained on the premises. From July 1, 1939, to November 8, 1939, the store was unoccupied because the landlord was trying to rent it for a package store. On the latter date it was rented to and occupied by a photographer on a month to month basis, for the same reason. On January 1, 1940, the landlord notified the photographer that he had obtained a tenant for a package store and the photographer moved out on January 8, 1940. The wall cases and sign were still there.

On January 1, 1940, Vetro's Package Stores, Inc., agreed to lease the premises for five years for the purpose of conducting a package store. Thereupon the relator, as permittee with Vetro's Package Stores as his backer, made application for a permit. This application was presented to the defendant for certification. It is part of her duty as city clerk to certify that the ordinances and by-laws of Meriden do not prohibit the sale of alcoholic liquors at the place in question when this is the fact. No permit may be granted by the liquor control commission without such certification. The application was certified on presentation but thereafter, on January 26, 1940, the certificate was withdrawn.

The zoning ordinance of Meriden provides that no premises shall be used as a package store if they are within one thousand feet of an existing package store. It then continues: ‘ Sec. 2. The provisions of the foregoing section shall not be deemed to be retroactive and shall not apply to buildings or premises now in use by package stores selling beer and alcoholic liquors except that when such existing package store has been discontinued for a period of 40 days, such use shall not be resumed except in conformity with the foregoing provision. * * *’

The question is, Could the trial court reasonably reach the conclusion from these agreed facts that there was a discontinuance of the business for more than forty days within the meaning and intendment of the ordinance? Whether or not the finding reasonably supports a conclusion is reviewable in this court on appeal. Town of Newtown v. Southbury, 100 Conn. 251, 253, 123 A. 278.

The facts found do not appear under the decisions to support this conclusion. The word ‘ discontinue’ contains the element of intention and...