85 A. 580 | Conn. | 1912
It was suggested upon the argument, by counsel for the appellee, that no appeal is allowed by statute from a decision of the county commissioners *380 granting the transfer of a licensed business from one place to another; that this appeal was therefore wholly unwarranted in law; that the Superior Court had no jurisdiction of it, and should have dismissed it for that reason; and that as a consequence the appellant was not harmed by the court's dismissal of the appeal, even if its rulings which are complained of in the reasons of appeal were erroneous. It will be well to consider this claim at the outset, for, if the appellant had no right of appeal, the case should have been dismissed by the Superior Court for want of jurisdiction, whether the plea in abatement was sustainable or not, and the appellant was not harmed by the rulings of which complaint is made.
General Statutes, § 2658, provides for an appeal, by the applicant for a license, from the action of the county commissioners in refusing to grant a license or in revoking a license to sell intoxicating liquors. Section 2660 provides that a taxpayer "may appeal to the Superior Court from the decision of the county commissioners in granting a license to sell spirituous and intoxicating liquors, or in refusing to revoke any such license already granted." Section 2669, after providing that every license shall specify the town and the particular building or place in which liquors may be sold under the license, and that the county commissioners may, after due notice and hearing, indorse upon the license permission to the licensee to remove from one building to another, concludes with the provision that "the law concerning appeals from county commissioners shall apply to such cases." We have held that this provision allowed a taxpayer to appeal where a licensee was given permission to remove his business from one building to another. Wakeman's Appeal,
The rulings complained of in the assignments of error all relate to the question of notice. The appellee, McGuire, as appears by the record, held a license to sell spirituous and intoxicating liquors in the city of Bridgeport at No. 1311 Main Street. He applied to the county commissioners for permission to remove his business, under the license, to No. 447 Gregory Street. The appellant, and numerous other citizens and taxpayers, demonstrated against the granting of such permission, but it was granted. The appellant thereupon filed with the county commissioners a written notice that it appealed from such decision to the Superior Court for the county of Fairfield on the second return day therefor after the decision, and filed with them a bond to the county to pay all costs should the appeal not be sustained. The county commissioners accepted and approved the bond and allowed the appeal, but made no order of notice of the taking of the appeal to be given to the appellee. No notice of the appeal was in fact served upon him, but that he had notice of it is apparent from the fact that he appeared, specially, to plead in abatement the want of notice. The question is, was he entitled to a formal notice? *383
The appellant, in taking its appeal, complied in every respect with the statute relating to appeals in these cases, as provided in General Statutes, § 2660, as amended by the Public Acts of 1905, chapter 150, and Public Acts of 1909, chapter 267. There is nothing in the statutes requiring that any notice shall be given, or ordered to be given, to the appellee in such cases. In appeals from justice and other inferior courts to the Superior Court and Court of Common Pleas, and in appeals from the Superior Court and other trial courts to this court, no notice to the appellee is provided for. He is a party to the proceeding in the lower court, and must take notice of what takes place there relating to the proceeding. The notice of the appeal filed with the trial court, and the filing of the bond, is all that is required of the appellant, unless, in cases of appeal to this court, a finding is necessary to properly present the questions of law sought to be raised.
It is said that the county commissioners, when granting and revoking licenses and permitting transfers and removals, sit as an administrative board and not as a court. We have so held, and held that an appeal from their decision does not and cannot transfer to the Superior Court the jurisdiction of the county commissioners to hear purely administrative questions; and that the word "appeal" is thus a misnomer when applied to these appeals from the county commissioners, because the proceeding by appeal does not transfer the entire matter to the Superior Court for a rehearing, but takes there only judicial questions involving the legality of their conduct. Moynihan's Appeal,
The legislature had power to provide a process by which the illegal conduct of the county commissioners, in granting or refusing licenses and in permitting or refusing transfers or removals, might be corrected. It exercised that power in § 2660 of the General Statutes as amended, by providing the appeal thereby allowed.Moynihan's Appeal,
Error is assigned upon the court's action in refusing *386 to order that notice be given to the appellee after the demurrers had been decided against the appellant and a motion for final judgment on the plea in abatement was pending. As the appellee had, to the knowledge of the court, actual notice of the pendency of the appeal, such notice was unnecessary. In a case where it is made to appear to the court that an appellee has no knowledge of the pendency of the appeal, it would be proper to order that notice be given to him. It was not error in the present case to refuse the order of notice requested. The demurrer to the plea in abatement should have been sustained.
There is error and the cause is remanded to be proceeded with according to law.
In this opinion the other judges concurred.