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La Croix v. County Commissioners.

if any he has, why his said license should not be revoked; such process to be served by copy thereof left with the accused, or at his usual place of abode, at least six days before the day the same is made returnable, by a proper officer.

“SEC. 4. The fees of the officer serving the process and of the witnesses summoned shall be the same as in criminal causes, provided that in the opinion of the commissioners the prosecution was brought in good faith and upon probable cause.

And the fees authorized in this section shall be taxed by the chairman of the commissioners and reported by him in writing to the county treasurer for record in a book provided for the purpose; and the said chairman shall, on his order, draw from the treasurer the gross amount so taxed in each cause and pay out the same to the persons to whom taxed; provided however, that in no event shall the total amount of costs taxed against the county treasurer in any one case exceed the sum of fifty dollars, and the fees of commissioners, prosecuting agents, witnesses and officers shall, if necessary, be scaled pro rata to such sums as shall make the aggregate not more than fifty dollars.

“Sec. 5. On the revocation of the license by the court of commissioners, the bond given by such person to the county when so licensed shall be put in suit by the treasurer of the county, and prosecuted in his name to final judgment for the benefit of the county, unless the county commissioners, for good reason, direct otherwise ; and the reasonable expenses of such prosecution, audited by the chairman of the commissioners, shall be paid out of the county treasury."

Counsel for the present complainant, admitting, as they must, that this statute, if constitutional, gives to the county commissioners sole and final jurisdiction of the complaint of the respondent Perry as prosecuting agent, and the necessary authority to determine the truth of the charge therein contained, and upon such determination to revoke the complainant's license, insist that the statute is unconstitutional, because they claim that the General

La Croix v. County Commissioners

Assembly have no power to constitute the county commissioners a court with jurisdiction of causes for the revocation of licenses, without giving to the parties who may be brought before them the benefit of a trial by jury or the right to have their judgments reviewed on error or appeal by a higher judicial tribunal.

There would be great force in this claim if the statute in question does constitute the county commissioners a court within the constitutional meaning of that term. The Constitution, art. 5, § 1, provides that “the judicial power of the state shall be vested in a Supreme Court of Errors, a Superior Court, and such inferior courts as the General Assembly shall, from time to time, ordain and establish; the powers and jurisdiction of which courts shall be defined by law.” Under this provision the General Assembly cannot, it is clear, ordain and establish any other than inferior courts; nor can they confer upon such courts, when ordained and established, the powers and jurisdiction of a court of final resort in any cause or class of causes which they may authorize to be brought before them. An inferior court, according to the technical meaning of the term, is

а court whose judgments, standing alone, are mere nullities, and in order to give them validity its proceedings must show jurisdiction. Kemp's Lessees v. Kennedy, 5 Cranch, 173; 10 Wheat., 192. But all courts from whose judgments an appeal or writ of error lies, are inferior courts in relation to the courts before which their judgments may be carried and by which they may be reversed, annulled or affirmed. Ex parte Watkins, 3 Pet., 205. It is in this latter sense that the framers of the constitution used the term “inferior courts.” They meant thereby courts whose judgments could be reviewed and whose errors might be corrected, on error or appeal, by another and a higher tribunal. Nugent v. The State, 18 Ala., 521. But the General Assembly did not intend, by chapter 124 of the public statutes of 1881, to constitute the county commissioners an inferior court in the constitutional sense of that term. The word “court" is, indeed, used in the first and last sections

La Croix 0. County Commissioners.

of that chapter; but it is apparent from the language of the other sections that it is used, not in its technical sense, but in the sense of the word “board,” and was intended to have no other force or effect than the latter word would have had if it, instead of the word "court," had been employed. This is especially apparent from the language of the second section, which, as has been shown, provides that " while so in session” (that is, while the county commissioners are in session for the trial of causes for the revocation of licenses,] the chairman of the board shall have all the powers of justices of the peace holding court in their respective towns, to compel the attendance and secure the testimony of witnesses duly summoned before them. The General Assembly would not have given to the chairman of the board of county commissioners the powers which this section confers, if they had supposed they had constituted, or intended to constitute, the county commissioners a part of the judicial power of the state-such powers being in that case entirely unnecessary. For the General Statutes, tit. 19, ch. 11, § 1, provide that parties shall have process of subpæna to bring witnesses into court, and if any person upon whom a subpæna is served to appear and testify in a cause pending before any court and to whom one day's attendance and fees for travelling to court have been tendered, neglects or refuses to appear and testify, without excuse, he subjects himself to a forfeiture of five dollars and to the payment of all damage sustained by such neglect or refusal by the party aggrieved. And those statutes also provide that the court may issue a capias to arrest such witness and bring him before the court to testify. But if the commissioners were intended to constitute a board merely, and not a court, for the trial of causes for the revocation of licenses, the powers given to the chairman of the board for compelling the attendance and securing the testimony of witnesses on such trials, were not only proper but necessary. Again, if the General Assembly intended to constitute the county commissioners a court, they would not have omitted to make provision for their

La Croix v. County Commissioners.

appointment as judges of the court for the term prescribed by the constitution. The constitution provides that all judges of inferior courts, except those of the common pleas, district courts, courts of probate, and city courts, shall be appointed annually. But the statute in force in 1881, which provided that the county commissioners should hold their offices for three years, was allowed to remain and still remains unchanged. It may be added that if the legislature had intended to constitute the commissioners a court, they would, when referring to them in the statute, have given to them their constitutional title of judges, instead of their statutory title of commissioners.

It being thus shown that under the statute of 1881 herein before recited, the county commissioners are a board merely and not a court, a writ of prohibition cannot be issued against them, for such a writ lies only against an inferior judicial tribunal.

This conclusion renders unnecessary a consideration of the question whether it was competent for the General Assembly to confer upon the county commissioners, as a board, the powers and jurisdiction mentioned in section first of chapter 124 of the public statutes of 1881. But the question is one of equal importance with the one already considered; and the parties having requested an expression of my opinion upon it, in order, as I suppose, to save the expense of further proceedings before this court upon another application in a different form, I cannot justly refuse to comply with the request.

The present complainant insists that the General Assembly have no more power to confer the jurisdiction mentioned upon the county commissioners as a board, than they have to confer the same jurisdiction upon them as a court, because, he claims, that his license is a contract between him and the state, vesting in him the right from the 2d day of November, 1881, until the 31st day of October, 1882, to sell intoxicating liquors in his saloon at Westport, unless, during that period, he has violated or shall violate some provision of the laws in relation to such liquors, and shall

La Croix v. County Commissioners.

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be convicted of such violation in due course of law. And he also insists that his license is property for which he has paid a valuable consideration and of which he cannot be deprived but by the judgment of a court of competent jurisdiction upon the verdict of a jury.

Questions kindred to this have been before the Supreme Court of the United States and the courts of several of our sister states; and although the decisions of the state courts are not entirely harmonious, there is a clear preponderance of authority in support of the doctrine that licenses like that of the complainant are not contracts between the state and the parties licensed, and are not property in any constitutional sense; that they are unlike an act of incorporation by which, in consideration of the supposed benefits to the public, certain rights and privileges are granted by the legislature to individuals, under which they embark their skill, enterprise and capital; and that their only effect is to permit persons to carry on a traffic which would otherwise be unlawful and criminal. They form, moreover, a part of the internal police system of the state, are granted in the exercise of the police power which is inherent in every sovereignty and cannot in any manner be alienated, and may at any time be revoked by legislative authority.

In the case of Calder v. Kurby, 5 Gray, 597, a license to sell intoxicating liquors had been granted for a certain period. The fee paid therefor was one dollar. Before the period had expired the license was annulled. It was urged upon the argument, in behalf of the plaintiff, that the license was a contract and within the protection of the constitution of the United States. But the court overruled the claim. Mr. Justice BIGELOW in giving the opinion says :-" The whole argument of the counsel for the plaintiff is founded on a fallacy. A license authorizing a person to retail spirituous liquors does not create any contract between him and the government. It bears no resemblance to an act of incorporation by which, in consideration of the supposed benefits to the public, certain rights and privileges are granted by the legislature to individuals, under which they

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