Hopson's Appeal from County Commissioners

Hamersley, J. In the preceding case of Smith's Appeal we held that a “ suitable person ” to receive a license to sell liquors under the provisions of § 3053 of the General Statutes, is a pei’son who is shown to the licensing authority to be suited or adapted to the orderly conduct of a business which the law regards as dangerous to public welfare unless conducted by a carefully selected person duly licensed, and — 144 — that the fitness of the man to the legal requirement must of necessity in each case be determined, in view of the statutory regulations, by the licensing authority in the exercise of its best judgment. The term “ suitable place,” as designating a place adapted to the sale of liquors by such licensee, is used in the same section with a similar meaning, and the suitability of such place must be determined by the licensing authority in a similar manner. Batters v. Dunning, 49 Conn., 480. The appellant’s claim of error in the exercise of its judgment by the court below in determining the suitability of the place in question, if the assigning of such error can support an appeal to this court, is disposed of by these cases. The appellant also assigns error in the admission and rejection of testimony by the court below. Apparently the errors assigned would not, if properly before us, furnish ground for a new trial; but we do not pass upon these questions, because we are of opinion that an appeal does not lie to this court from a judgment of the Superior Court for the correction of such errors as are assigned in this appeal. The license law of 1872, as developed by amendments into its present form, may be regarded to a limited extent as a revenue act; but its real and substantial characteristics are those of a police regulation made in the exercise of the police powers of the State, to establish regulations appropriate for the preservation of public order, and the protection and promotion of public health and morals. In sustaining the constitutionality of the prohibitory statute of 1854, this court said: “ The object of the legislature in passing it, was to aid in the suppression of intemperance, pauperism and crime ; evils which impose very heavy and onerous burdens upon the public. The expenses attending the prosecution of crimes, the support of criminals, and the maintenance of paupers are very great; and no one can doubt but that to a very great extent, they have been caused by the multitude of tippling shops with which our community has been heretofore infested.” State v. Brennan's Liquors, 25 Conn., 288. — 145 — The failure of such legislation to accomplish its object, induced the legislature to change the policy of prohibition to the policy of restriction, but its object remained the same. The main and controlling feature of the new policy consisted in provisions for the selection of persons suited to conduct the business of selling liquors in compliance with statutory regulations, and fitted to perform the quasi public duties which an acceptance of the special privileges granted involved. The duty of making such selection was imposed on county commissioners, an administrative and not a judicial tribunal, This power of selection was in its nature a discretionary power, and the only limit placed by the legislature on the exercise of the discretion is found in the provisions forbidding the selection of specified classes of persons. So careful was the legislature to prevent any question as to the absolute nature of this discretion, that in giving to county commissioners the power and prescribing the manner of revoking any license, (a provision liable to be construed as affecting vested rights) it specially provided that such revocation “ shall be final and conclusive, and not subject to appeal, review, or revision, by any other tribunal whatever.” General Statutes, § 8061. Experience proved that the power vested in county commissioners was liable to abuse; that occasionally the judicial temper essential to its just exercise was lacking. In order to provide against such occasional abuse, the legislature of 1893 authorized an appeal from the decision of county commissioners to the Superior Court, to be tried by a judge of said court. Public Acts of 1893, p. 319. If the legislation authorizing the appeal brings the matter within the exercise of judicial power, then this court has jurisdiction to correct any error in law committed in the exercise of such judicial power; and in that case we think the statutes regulating procedure should be construed so as to include the proceeding within their operation. The subject-matter of jurisdiction is the selection, under statutory limitations, of a person suited to perform his part in carrying out a system of police regulation. The essential — 146 — ¡ function of the selecting tribunal is the giving effect to a ! police regulation incidentally involving private rights or j interests. It is evident that such a function cannot be ! executed without the use of means that are in their nature, j independently of the purpose of their use, executive as well, las judicial. We think such a function lies on the border, line of the division between executive and judicial power,- and that it is competent for the legislature to commit its 1 exercise either to judicial or executive officers, as may be j found' necessary for the most efficient enforcement of its Í police regulations; but we do not think it necessary to | examine critically the grounds for reaching such a conclusion, for the practice of this State, both before and since the ' adoption of the Constitution, has treated the licensing of ¡persons for the sale of intoxicating liquors in the execution of police regulations on that subject, as a function both judicial ' and executive in its nature, and as one which the legislature may properly commit to either department of government, or to both ; and has thus settled the true meaning of the constitutional requirement that judicial and executive powers shall eacli be confided to a separate magistracy, so far as it affects this question. Such a practical construction may safely be accepted, when the theoretical distinction to be drawn by the court must be subtle and doubtful. This question arose in Beard’s Appeal, 64 Conn., 526; and we held that “the cause became one of a judicial nature, when it was brought before the Superior Court, and as the judgj ment there rendered was founded on a misconception of the j law, it was as much the subject of review as a judgment in any other proceeding.” In Smith’s Appeal, supra, the error j assigned was, also, the wrong construction by the court I below of the language of the statute; and we held that such ! error could properly be reviewed on appeal. But in this case the only errors assigned relate to the action of the judge in reaching his conclusion that the place mentioned Í was not a suitable place. The error so assigned cannot be j reviewed on appeal to this court. The granting of a license is not so exclusively an execu — 147 — tive function that the legislature has no power to confide it to a court, but it is nevertheless very clear that the function is different from that of settling disputed rights in the ordinary course of a judicial trial. The technical rules which bind a court in such a trial have been developed by the exigencies of judicial combats, where each party is entitled ex debito justitioe to have a judgment in case he maintains the facts alleged by testimony that must be received or rejected, and weighed, in strict compliance with the rules established for the conduct of such combats. But the exercise of the judicial function involved in the proceeding in question calls .for no such trial. The judge does not preside over a judicial combat as in the trial of a civil action ; he receives aid in the formation of his personal judgment. The parties before him may properly attempt to influence that judgment; but it must be reached by the judge, not in subordination to the particular interests of these parties, but in the interests of the public in whose behalf an appeal to such exercise of the judicial power is allowed. In reaching his conclusion, as well as in directing the production of evidence to aid him in reaching that conclusion, he acts in the exercise of a judicial discretion which is not the subject of review, and which is essential for certain purposes to the exercise of judicial power. The discretion should be exercised in accordance with the appropriate analogies of the rules governing judicial trials; but, in the nature of things, the court cannot be bound in the particular application of such analogies as it is bound in the application of the strict rules of law in a judicial trial. The instances of the exercise of such discretion by courts, both in reaching a result and in the methods by which the needed information is obtained, are familiar. The Act of 1893, in permitting an appeal from the decisions of count}*- commissioners to the Superior Court, called into action a judicial function for dealing with such appeal; but it did not alter the actual nature or extent of the power originally vested in the county commissioners for the selection of proper persons and proper places for the sale of liquors. The discretion necessary to the exercise of that — 148 — power by the county commissioners is, by the appeal, transferred to the judge of the Superior Court; but there is nothing in the Act which can be construed as attempting to vest in this court the final exercise of that discretion, or the control of its exercise by a judge of the Superior Court. In dealing with such appeal the Superior Court is bound by the rules of law regulating the conditions on which the discretionary power of selection shall be exercised, such as the meaning and effect of the language of the regulating statutes, and the acts required by statutory regulations in order to permit any action on the original application or the appeal. The court is also bound by those fundamental rules of law that control all exercise of judicial, or quasi judicial, power; it may not, for instance, arbitrarily refuse to hear any evidence, or to listen to a person entitled to be heard. The failure of the court to comply with such rules may be error which this court upon appeal will correct. But in exercising the duty of determining a suitable person and a suitable place for the sale of liquors, imposed on the county commissioners and, by force of the appeal, transferred unchanged in its nature and extent to a judge of the Superior Court, the judge is engaged in settling a matter of discretion. In this case, certainly, the court was not engaged in the trial of “ matters of fact in any cause or action ” within the meaning of the statute regulating appeals to this court. Our conclusion is: The Act of 1872, as now amended, is an exercise by the legislature of the police power of the State for the purpose of promoting the suppression of intemperance, pauperism and crime. The controlling feature of the Act for the accomplishment of this purpose, is the restriction of the sale of liquor at suitable places, by persons suited to the orderly conduct of the business, in accordance with the regulations prescribed by the Act as essential to the accomplishment of its object. The selection of such persons and places is confided to the county commissioners, in the exercise, under statutory limitations, of their sound discretion and judgment. By the practical construction of our Constitution as settled by the contemporaneous and uniform action — 149 — of legislature and courts, the function of such selection or licensing is one within the judicial as well as the executive power, and may be confided by the legislature to executive, or to judicial officers. The Act of 1893 authorizing an ap-j peal from the decisions of the county commissioners to the Superior Court, made such an appeal a judicial proceeding in so far that the judgment of the court confirming or refusing to confirm the decision appealed from may be reviewed! by this court when such judgment is founded on a miscon-,¡ ception of the law regulating such appeals; but the Act, imi transferring to a judge of the Superior Court the power of! the county commissioners in the determination of a suitable person and place for the sale of liquors, does not alter the discretionary nature of that power, and therefore an appeal does not lie to this court for the correction of any errors claimed to have been committed by the judge in the, lawful exercise of his sound discretion and judgment; and, an appeal assigning only such errors must be dismissed, and may be dismissed on motion. The appeal is dismissed. In this opinion the other judges concurred.