Gilday v. Warren

Feee, J. This is an action of replevin against a deputy sheriff, to recover possession of ,a liquor license. The facts as they appear upon the face of the pleadings, the complaint, answer and reply, are these: On January 31st, 1896, the county commissioners of New Haven county issued to one Thomas E. O’Brien of New Haven, a license to sell and exchange spirituous and intoxicating liquors in the town of New Haven, until December .31st, 1896. On June 18th, 1896, the plaintiff, for a valuable consideration, purchased of the said Thomas E. O’Brien said license and took the same into his possession. On June 19th, 1896, one Maurice Luby caused a writ of attachment to be issued against the estate of said Thomas E. O’Brien in a suit upon a note held by said Luby against said O’Brien, which said suit was returnable to the Court of Common Pleas for New Haven county on the first Monday of July, 1896. By virtue of said writ the defendant in this suit, being a deputy sheriff for New Haven county, attached as the property of said O’Brien, said license aforesaid, by leaving on said June 19th, 1896, a true and attested copy of the complaint, with his doings thereon indorsed, at the usual place of abode of said O’Brien, and a like true and attested copy with the town clerk of New Haven, as is by statute in such cases provided. On July 7th, 1896, the said Maurice Luby recovered judgment in the aforesaid suit against said O’Brien for the sum of 1209.78, upon which execution was at once issued and given to said'Warren, the defendant in this suit, to execute and return; and by virtue of said execution the said Warren levied upon said license and took the same into his possession, and duly advertised it for sale upon execution, as by statute provided. On July 9th, 1896, the plaintiff in this suit took said license from the possession of said officer by virtue of this replevin. The pleadings terminated in a demurrer to the plaintiff’s reply, which was sustained by the court below. Thereupon, the plaintiff refusing to’plead over, the court found all the allegations of the defendant’s answer to be true, and rendered judgment in favor of the defendant. [239] The plaintiff correctly says that though a number of reasons of appeal are assigned, there is but one question presented to this court, namely: Did the court below err in sustaining the defendant’s demurrer, on the ground that it did not appear in the pleading demurred to that at the time of the attachment of said license the same had been transferred to the plaintiff, Gilday, with the consent of the county commissioners (General Statutes, § 3071); and that therefore there did not appear to have been any legal transfer or delivery of said license from O’Brien, to whom it was issued, to the plaintiff, and so the title to the same was in O’Brien. The statute in question is in these words: “ Any licensee, or in ease of his death his executor or administrator, may, with the consent of the county commissioners, transfer his license to any other suitable person, but the person to whom such license is to be transferred shall make a similar application, procure a like recommendation, and execute a bond of the same amount and character, as in section 3064, required of the person to whom such license was originally granted.” Under this provision it is the claim of the plaintiff, that the act of the licensee in selling and delivering the certificate of the license to the purchaser, is sufficient to invest the latter with title to said license against attaching creditors, without any act on the part of the commissioners. The defendant, on the contrary, contends that the plaintiff, in order to hold said license against attaching creditors of the original licensee, must show that before attachment the license had been transferred to him, with the consent of the county commissioners, after compliance with the provisions of the aforesaid statute. Since the law prohibits the sale of intoxicants without a license, it follows that the granting of the license confers a right which previous thereto did not exist. State v. Gray, 61 Conn. 46. This right is personal. It cannot be transferred except by virtue of the express provisions of the statute (§ 3071). If it is done by virtue of such enactment, it must be done in strict compliance and accordance therewith. The transfer must be with the consent of the county commissioners, and it must be to a suitable person; and upon [240] this the county commissioners decide in giving or withholding their consent. But further, not only must the person be suitable and the consent of the county commissioners granted, but the proceedings must be in the prescribed form, embracing an application, a recommendation, and a bond, as required of the person to whom the license was originally granted. That all of these things are essential to the creation of the right in the transferee is evident, both from the very character of such right, and also from the language employed in the statute providing what shall be done, not by the person to whom the license is, but by the one to whom it is to be, transferred, making these acts, therefore, precedent conditions to any transfer of title or right. The appellant suggests in opposition to the view above expressed, the language of Chap. 128 of the Public Acts of 1895, p. 509, providing for the attachment of liquor licenses, under the authority of which the attachment in this case was made. He urges that under that statute the sale of the license on execution and the consent of the county commissioners are not concurrently necessary to give title, but only in order to use the license, for which purpose it is expressly provided that compliance with certain requirements shall be necessary. He insists that there is here a distinction recognized between title to the license and the right to beneficially employ it. And he then urges that it could not have been the intention of the legislature to make one rule for the man who purchases a license at a sale on execution, and another for a man who purchases a license directly from the original licensee; and he concludes: “ In both cases the title to the license is complete in the purchaser at the time of the sale, and the subsequent consent of the county commissioners, in either case, is not intended to confer title, but to permit the use of the license by the purchaser.” But in answer to this, without undertaking to determine the validity of the claim made as to the Act of 1895, which is not now properly before us for consideration, we do not think the other provision, [241] General Statutes, § 8071, capable of such a construction as the appellant seeks to give it. There is no error. In this opinion the other judges concurred.