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La Croix 0. County Commissioners.
embark their skill, enterprise and capital. The statute regulating licensed houses has a very different scope and purpose. It was intended to restrain and prohibit the indiscriminate sale of certain articles deemed to be injurious to the welfare of the community. The effect of a license is merely to permit a person to carry on the trade under certain regulations and to exempt him from the penalties provided for unlawful sales. It therefore contained none of the elements of a contract. The sum paid for it was merely nominal; and there was no agreement, either express or implied, that it should be irrevocable. On the contrary, it is manifest that this statute, like those authorizing the licensing of theatrical exhibitions and shows, sales of fireworks and the like, was a mere police regulation, intended to regulate trade, prevent injurious practices, and promote the good order and welfare of the community, and liable to be modified and repealed whenever, in the judgment of the legislature, it failed to accomplish these objects.”
The Supreme Court of New Hampshire, in the case of The State v. Holmes, 1 Chandler, 225, came to the same conclusion as the court of Massachusetts, upon the same course of reasoning. The Chief Justice, in giving the opinion, says :-“It is an essential ingredient of a legal license that it confers no right or estate or vested interest, but is at all times revocable at the pleasure of the party who grants it. Nor has the word any popular use which differs from the legal definition. In both the legal and the popular sense the term "license” implies no right or estate conveyed or ceded, no binding contract between parties, but mere license and liberty to be enjoyed as a matter of indulgence at the will of the party who gives the license.”
The same doctrine is recognized and enforced by the Court of Appeals of the state of New York, in the case of The Metropolitan Board of Excise v. Barrie, 34 N. York, 657. The court in that case declare that licenses to sell intoxicating liquors are not contracts between the state and the persons licensed, giving to the latter vested rights, protected on general principles and by the constitution of the
La Croix v. County Commissioners.
United States against subsequent legislation ; nor are they property in any legal or constitutional sense; that they have neither the qualities of a contract or of property, but are merely temporary permits to do what otherwise would be an offence against a general law; that they form a portion of the internal police system of the state; are issued in the exercise of its police powers, and are subject to the direction of the state government, which may modify, revoke, or continue them, as it may deem fit. The court in the same case also declare that the necessary powers of the legislature over all subjects of internal police, being a part of the general grant of the legislative power given by the constitution, cannot be sold, given away or relinquished.
The Court of Appeals of the state of Maryland, in the case of Fell v. The State, 42 Md., 71, hold the same doctrine. In that case the court say that "the legislature has power to prohibit the sale of spirituous or fermented liquors in any part of the state, notwithstanding a party to be affected by the law may have procured a license under the general license laws of the state, which has not yet expired. Such a license is in no sense a contract made by the state with the party holding the license. It is a mere permit, subject to be modified or annulled at the pleasure of the legislature, who have the power to change or repeal the law under which the license was granted."
In Hirn v. The State of Ohio, 1 Ohio St., 21, the plaintiff had been granted a license under the laws of that state to keep an inn, which permitted him to sell spirituous liquors for a certain period of time, and had paid therefor a substantial license fee. Before the expiration of that period the legislature passed an act repealing the law under which the license was granted and thereby revoked the license. The plaintiff contended that the legislature had no power to pass such an act. But the court said they were not disposed to question the power of the legislature in a matter of that kind, connected as it was with the public policy and domestic regulations of the state ; that upon the ground of protecting the health, morals and good order of the commu
La Croix v. County Commissioners.
nity, they were not prepared to say that the legislature did not possess the power to revoke such license. They added however that where there had been no forfeiture of the license by abuse or a violation of its terms, common honesty would require that the money obtained for it should be refunded in case of its revocation.
The doctrine of the cases of Calder v. Kurby, State v. Holmes, Metropolitan Board of Excise v. Barrie, and Fell v. The State, is strongly supported by decisions of the Supreme Court of the United States in the cases of Beer Company v. Massachusetts, 97 U. S. Reps., 25, Patterson v. Kentucky, id., 501, Fertilizing Company v. Hyde Park, id., 659, and Stowe v. Mississippi, 101 id., 814. Mr. Justice BRADLEY, in giving the opinion of the court in Beer Company v. Massachusetts, says: Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizen and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema est lex ; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion may no more be bargained away than the power itself.” Again he says:“All rights are held subject to the police power of the state. If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer."
These authorities are sufficient to show that it was competent for the General Assembly, in the exercise of the police power belonging to the state, to prohibit entirely, or to authorize, upon such conditions as they saw fit, the sale
La Croix o. County Commissioners.
of intoxicating liquors. They saw fit to authorize the county commissioners of each county, upon the recommen. dation of the selectmen of any town voting in favor thereof, to license suitable persons to sell such liquors in the town so voting, from the date of the license until the 31st day of October next following; upon condition however that the persons licensed should observe all the laws of the state in relation to intoxicating liquors, and that if they violated any of those laws such violation should work a forfeiture of their licenses; and upon the further condition that all licenses should be revocable in terms for any violation by the persons licensed of the law regulating the manufacture and sale of intoxicating liquors, and that the county commissioners should constitute a board for the trial of causes for the revocation of such licenses, and that their jurisdiction in such causes should be sole and final. The license of the present complainant was granted to and accepted by him upon those conditions. It does not, therefore, become him to say that the county commissioners, in proceeding to hear and determine the complaint of the respondent Perry as prosecuting agent, were exceeding their jurisdiction and holding plea of a matter whereof by law they have no cognizance, or that the statute under which they were so proceeding violates any of the
of the present complainant's constitutional rights.
In the case of The People ex rel. Beller v. Wright, 3 Hun, (N. Y. Supreme Court R.,) 306, the board of excise for the village of Delhi in the state of New York, under statutes almost identical in terms with our own, granted to the relator a license to sell ale and beer in that village for a certain period. The license was revocable for a violation, by the relator, of any of those statutes; and the board of excise were required, upon the complaint of any residents of the village charging any such violation, to summon the relator to appear before them and show cause why his license should not be revoked; and to revoke the license if they became satisfied of the truth of the charge contained in the complaint. The relator was summoned, upon the
La Croix 0. County Commissioners.
complaint of four residents of the village of Delhi charging him with a violation of the statutes referred to, to appear before said board and show cause why his license should not be revoked. He appeared and objected to the right of the board to proceed and to their administering the oath to the complainants' witnesses, upon the ground that his license was a contract and vested in him the right to sell ale and beer during the period mentioned in it unless he violated some provision of the laws regulating the sale thereof; and that upon the question whether he had been guilty of any such violation he was entitled to a trial by · jury. But both objections were overruled; and the board proceeded, and, after hearing, revoked the license. The matter then went before the Supreme Court; and there the proceedings of the board were sustained. HARDIN, J., in a very brief opinion, says:—“ The relator was not entitled to a trial by jury. The statute under which he received his license expressly authorizes and empowers the board of excise, when they shall become satisfied that any such person or persons has or have violated any of the provisions of the act, to revoke, cancel and annul the license of such person or persons. The license was merely a permit given to the relator under which he was authorized to sell ale or beer. It does not give him any property or vested right to enjoy the privileges thereof beyond the time when the board should become satisfied that he had violated any of the provisions of the acts of 1857, 1869, 1870 or 1873. The board had no power to inflict a penalty upon him for violations of the law. They were simply authorized to revoke the permit theretofore given him in respect to ale or beer."
The New York Court of Appeals arrived at the same conclusion in the case of The People ex rel. Presmeyer v. The Board of Commissioners of Police and Excise, 59 N. York, 92. In that case the relator had obtained a license from the respondent board for the sale of intoxicating liquors in the city of Brooklyn under the provisions of the statutes referred to in the case last cited. Before the license expired complaint was made to the superintendent