45 A.2d 430 | Vt. | 1946
By this petition for a writ of mandamus the plaintiffs seek to compel the defendants to give them a hearing upon their application for a first class license to sell malt and vinous beverages for consumption on the premises operated by them as a restaurant in the town of South Burlington. The petition shows that the plaintiffs at the time of making their application, and at several times thereafter, requested an opportunity to be heard thereon, and that the application was denied without giving them an opportunity to be heard. An answer was filed, which admits the allegations of the petition, and asserts that the defendants performed the duty which they were called upon to perform when the application was made, and that they are not required to grant a hearing on such an application. Upon argument it was agreed that the answer should be treated as a demurrer.
This case turns upon the construction of the first paragraph of section 22 of No. 1 of the Acts of the Special Session of 1934, as amended by § 2 of No. 216 of the Acts of 1939. This reads:
"The control commissioners may with the approval of the liquor control board grant to a retail dealer in respect to the premises wherein the dealer shall carry on business the following:"
this paragraph is followed by two paragraphs headed by "(A)" and "(B)", respectively relative to a first class license to sell malt and vinous beverages for consumption on the premises, and to a second class license to sell such beverages for consumption off the premises. The only changes made by the amending act were in these two paragraphs relative to the age of persons to whom sales could not be made. The quoted paragraph was unchanged.
No. 1 of the Acts of the Special Session of 1934 revised our liquor law and repealed §§ 1196 to 1221 inclusive of the Public Laws. The first paragraph of P.L. 1203 read as follows: "The control commissioners may grant to a retail dealer in respect of *353 the premises wherein the dealer shall carry on business the following:" This paragraph was followed by two paragraphs headed "I" and "II", respectively, relative to first and second class licenses to sell malt and fermented beverages and light wines. These were substantially like the two paragraphs headed "(A)" and "(B)" above, both in language and arrangement, except for the omission of the age of persons to whom sales could not be made, which was covered as to second class licenses by P.L. 1204. §§ 1203 and 1204 of the Public Laws were derived from § 7 of No. 140 of the Acts of 1933, as amended by § 5 of No. 10 of the Acts of the Special Session of 1933. Here the first paragraph reads as in P.L. 1203, and the likeness of language in the two following paragraphs headed "(a)" and "(b)" to the two paragraphs headed "(A)" and "(B)" above is even more pronounced. Only paragraph "(b)", however, contains any age limitation.
We held in the case of Crystal Brook Farm, Inc. v. ControlCommissioners of Derby,
The statute does not provide for a hearing upon an application for a license. The only direction for a hearing, other than in court proceedings over violations of the Act, is in § 26, where it is provided that no license shall be revoked until the licensee shall be notified and given a hearing before the liquor control board, unless the licensee shall have been convicted in court of violating the provisions of the Act. The inference is that no hearing is required upon such an application and that the control commissioners may act upon the basis of any knowledge or information available to them, so long as their action is not arbitrary or capricious, but is made in good faith and with a view of advancing the purpose and policy of the law; unless the statute must be so interpreted as to afford an applicant for a license a hearing before his application can be denied, in order not to be wanting in due process of law. See In re Allen,
Because of the tendency of the use of intoxicating liquors to deprave public morals, it has come to be the generally accepted doctrine that the manufacture or sale of such liquors, and even their possession or use, is not a matter of "common", "inherent", or "natural" right, but, if a right at all, is one held subject to the police power of the State; in other words, it is a mere privilege which the State may grant to some and deny to others, or may take away altogether. 30 Am Jur Intoxicating Liquors, § 19. See State v. Semeraro,
Notice and hearing is necessary only when some constitutional right is claimed to be invaded. When the purpose of an administrative determination is to decide whether a privilege which an applicant does not possess, such as a license to sell intoxicating liquor, shall be granted to him or withheld in the exercise of a discretion vested by statute, notice and hearing is not necessary in the absence of an express or implied statutory provision therefor. 42 Am Jur Public Administrative Law, § 135.Centerville v. Gayken,
In arriving at the foregoing conclusions we have not departed from the holdings in Sanborn v. Weir,
The petition alleges no facts tending to show that the defendants in denying the plaintiffs' application for a license acted arbitrarily or capriciously, and we are not informed as to the reason for the denial. The action of the defendants in refusing a license will, therefore, be presumed to have been intended for the public benefit, and to have been based on reasons deemed adequate. Buffalo v. Hill,
The petition does not show whether the town of South Burlington voted to authorize the granting of licenses for the sale of malt and vinous beverages under other sections of the Act, but as no question is raised we give it no consideration.
Petition dismissed with costs.
Because of illness Mr. Justice Buttles took no part in the decision of this case. *357