Richards v. Geiger, 39 App. D.C. 278

Richards v. Geiger

39 App. D.C. 278 | D.C. Cir. | 1912

Mr. Justice Robb

delivered the opinion of the Court:

The appellees have filed a motion for the dismissal of this-appeal upon the ground that the excise board is not the proper party to intervene. The act of March 3, 1893 (27 Stat. at L. 563, chap. 204), “regulating the sale of intoxicating liquors in the District of Columbia,” is very comprehensive in character. Its first section prohibits the sale, or keeping for sale, of intoxicating liquors, except as provided in the act. By the second section an excise board, consisting of the three commissioners of the District, is constituted. It is made the duty of this board to pass upon all applications for license under the act, and its action is made final and conclusive, “and only on the granting by said board of a license to an applicant to sell intoxicating liquors shall the assessor issue a license to such applicant.” The section further empowers said board to “make such rules and regulations for carrying into effect this act as they may deem necessary and proper.” The board is required to make an annual report to Congress, setting forth the number of applications for license, both favorably and unfavorably acted upon, "the number of persons convicted for violations of that statute, and the amount of fines collected and uncollected.” The act of August 14, 1894 (28 Stat. at L. 285, chap. 287), constitutes the *282board of assistant assessors, instead of the commissioners, the excise board, and repeals so much of the prior act “as imposes that duty upon the commissioners of the District of Columbia.” By sec. 3 of said act of 1893 a clerk for the excise board is provided, and he is ex officio the inspector of licenses issued under the act; and it is made his duty “to make the inspection required by this act under the orders of the board, and make full report of such inspection to the board at such times as it may order.” By sec. 4 every applicant for a license must, in his petition, comply with enumerated requirements. Under sec. 5 it is made the duty of the board to revoke any license upon the conviction of the licensee of keeping a disorderly or disreputable place. Under sec. 7 “no license can be transferred by the licensee to any other person except with the written consent of the excise board upon application thereto in writing, and then only on the proposed transferee’s obtaining the consent of a majority of the real estate owners and resident housekeepers, as provided in section 5 of this act.” Sec. 9 requires every person receiving a license to frame it under glass, and to give it a conspicuous position in his place of business. See. 10 requires all applicants for license, and persons holding licenses, to allow “the duly authorized agent or officer of the excise board full opportunity. and every facility to examine, at any time during business hours, the premises.” Sections 12 and 13 provide penalties and forfeitures. Under sec. 15, as amended by the act of May 11, 1894 (28 Stat. at L. 76, chap. 73), prosecutions for violations of the act are required to he on information filed in the police court by the attorney of the District, or his assistants, upon sworn information satisfactory to either.

In Bush v. District of Columbia, 1 App. D. C. 1, in both the prevailing and dissenting opinions, it is set forth that the above act was intended by Congress as a complete substitution for all other laws and regulations upon the subject. Again, in Gassenheimer v. District of Columbia, 6 App. D. C. 108, 113, the court observes that said act “purports in express terms to be, as we have already stated, a full and complete regulation of the whole subject-matter with which it deals.”

*283It is contended in behalf of the excise board that under the provisions of said act it is clothed not only with authority over the issuance of licenses for the sale of' intoxicating liquors within this jurisdiction, but also with the duty of general supervision over all places where intoxicating liquors are sold; that, in carrying out its conception of the scope of its authority and duties, it has, as authorized by one of the provisions of said see. 2, from time to time made and promulgated rules and regulations for carrying into effect the provisions of the act; that under one of its rules an application for the transfer of a deceased licensee’s license must be made within sixty days after the death of such licensee, and a copy of letters of administration must be filed with the application for transfer; that under another rule, upon the approval or rejection by the board of any application the clerk of the board is required to notify both the assessor of the District and the major of police. We have seen that the board must make an annual report to Congress, including, among other things, the number of persons convicted for violations of the act. Such a requirement, taken in connection with the various other provisions of the act, necessarily imposes upon the board more than the mere duty of considering applications for licenses. Talcing the act as a whole, we think it apparent that the excise board is thereby charged with the general supervision and control of the sale of intoxicating liquors in this District, and that the provisions of sec. 15 regarding prosecutions for violations of the act merely provides the legal machinery through which the provisions of the act are to be enforced. When the court entered the order in question the board had already rejected an application for the transfer of the Geiger license. Presumably, through an inspection by its clerk, the board subsequently discovered that, notwithstanding such rejection, the business was being continued. Dnder its rules it then became the duty of the board to notify the major of police. He, of course, would hesitate to take any action in view of the order of the court. The attorney for the District, as well as the police court, would also be embarrassed if not precluded from action by said order. The order was therefore a *284serious obstacle in the way of an enforcement of the law, and, if it was issued without authority, someone was charged with the duty of taking the proper steps to have it revoked. ' The statute imposes no duty upon the commissioners of the District with reference to the sale of intoxicating liquors. They are given no control over the excise board. Its duties are exclusive. In view, therefore, of the broad scope- of the enumerated duties of the board and the apparent intent of Congress, gleaned from all its legislation upon the subject, to clothe the board with authority to represent the District in matters pertaining to th& liquor traffic in this jurisdiction, we rule that it was properly permitted to intervene.

That a license to sell intoxicating liquors is personal to the holder, a mere permit, and not transferable unless the right is expressly conferred by statute, is plain, the decisions upon the question being uniform and conclusive. “There is no inherent right in a citizen to thus sell intoxicating liquors by retail- it is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils.” Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13. A review of the several sections of said act of 1893 leaves no room for doubt that, instead of authorizing the transfer of a license as a matter of right, the act expressly negatives such a proposition. The provisions of sec. 4, as we have noted, require the petition of an applicant to comply with eight enumerated requirements, all of a personal character. Sec. 7 expressly prohibits the transfer by a licensee of his license, except upon compliance with the conditions therein contained, and even then the written consent of the excise board is necessary. In Gilday v. Warren, 6 Conn. 237, 37 Atl. 494, the court said: “The granting of the license confers a right which previous thereto did not exist. . . . This right is personal. It cannot be transferred except by virtue of the express provisions' of the statute.” The licensee having no right to transfer a license during his life, it of course logically follows *285that his representatives at his death have no greater power to make such a transfer than he possessed. United States v. Overton, 2 Cranch, C. C. 42, Fed. Cas. No. 15,979; 1 Woollen & T. Intoxicating Liquors, 699; Black, Intoxicating Liquors, ¶ 131; Re Grimm, 181 Pa. 233, 37 Atl. 403.

When, therefore, the attempt of the representatives of Mrs. Geiger to effect a transfer of her license within the time permitted by the rules of the excise board failed, the sale of liquor thereafter by the executors was entirely without authority of law. The statute clothed the excise board with exclusive jurisdiction over the granting of licenses, and the court was without jurisdiction to issue the order authorizing and directing the appellees to continue to maintain a barroom, the license under which such business had theretofore been operated having expired.

But it is insisted that the appeal should have been from the order, and not from the ruling of the court declining to vacate it, and cases are cited. Counsel, we think, fail to note the distinction between an order entered in a probate proceeding, of which order the court retains control, and a final order. In the latter case, an application for a vacating order would, as counsel contend, be in the nature of an application for a new trial. Here, however, the court retained control over the order which the appellants sought to have vacated, permitted the intervening petition, considered it upon its merits, and denied it. The •distinction between the two cases is so apparent that nothing further need be said.

Judgment reversed, with costs, and cause remanded for further proceedings. Reversed.