Allyn's Appeal , 81 Conn. 534 ( 1909 )

The sole ground of the appeal to this court is that the license law (Rev. 1902, chapters 157 and 158) is void. The claim is that the sale of intoxicating liquors to be drunk as a beverage at the place of sale, is so destructive to the public health and so inherently immoral, that no law upholding it can be valid either under the Constitution of this State or of the United States.

The appellant first contends that, as the people of Connecticut, in the preamble of their Constitution, gratefully acknowledge "the good providence of God, in having permitted them to enjoy a free government," this is a recognition of God as the source of that government; that the Bible contains the "word of God"; that it condemns the use and sale of intoxicating liquors as a beverage; and therefore that the State cannot permit it on any terms.

There was a time in the early history of this Commonwealth when the Bible was, "in the case of the defect of a Law in any particular case," a rule of political government. 1 Col. Rec. of Conn. 509. But even then it was never considered to contain any absolute prohibition of such a business as that for which the license now in question was granted. As early as 1643 it was provided by the colonial laws that no person or persons should sell wine or "strong water in any place within these libertyes, without license from the particular court or any two magistrates." 1 Col. Rec. of Conn. 100; Cf. ibid. 154. Our Code of 1650 (1 Col. Rec. 533), under the title of "Inkeepers," recited that "forasmuch as there is a necessary vse of howses of Common Interteinement in euery Common wealth, and of such as retaile wine, beare and victualls, yet because there are so many abuses of that lawfull libberty, both by persons interteining and persons interteined, there is allso need of strict lawes and rules to regulate such an imployment." Legislation of a similar character appears in subsequent revisions of the statutes, down to the date of the adoption of our Constitution. Statutes (Ed. 1715) 123; Comp. 1808, 640; Public Acts of 1810, p. 33, Chap. VII. It had been one of the permanent features of that free government, for the enjoyment of which the people expressed in that instrument, in the language quoted, their gratitude to the good providence of God. In the face of this long history of dealing with the use and sale of intoxicating liquors as a beverage, to be drunk at the place where they are purchased, it is idle to claim that the framers of the Constitution understood or intended that anything contained in it should be regarded as prohibiting altogether the licensing of such a business. Minor v.Happersett, 21 Wall. (U.S.) 162, 175.

Our Constitution (Art. III, § 1) vests "the legislative power of this State" in the General Assembly. That power covers the whole field of legitimate legislation except so far as limitations are to be found in other provisions of this Constitution or in that of the United States.

The latter provides (Art. IV, § 4) that the "United States shall guarantee to every State in this Union a Republican Form of Government." Connecticut is therefore impliedly bound forever to maintain such a form of government. She put her legislative power in the hands of the General Assembly. She put only, because she could put only, such power of that nature as was consistent with a republican form of government. Fletcher v. Peck, 6 Cranch (U.S.) 87; Welch v. Wadsworth, 30 Conn. 149, 155. In constitutional republics, as was observed by Chief Justice Chase in a case where arguments somewhat resembling those now made at our bar were advanced, "there are, undoubtedly, fundamental principles of morality and justice which no legislature is at liberty to disregard; but it is equally undoubted that no court, except in the clearest cases, can properly impute the disregard of those principles to the legislature." License Tax Cases, 5 Wall. (U.S.) 462, 469; LoanAssociation v. Topeka, 20 id. 655, 663.

The General Assembly of Connecticut, under the Fourteenth Amendment to the Constitution of the United States, can deprive no one of life, liberty, or property, without due process of law. Any precise and exhaustive definition of the phrase "due process of law" has been sedulously avoided by the Supreme Court of the United States. Davidson v. New Orleans, 96 U.S. 97, 104. It has, however, been repeatedly declared to refer not merely to forms of legal proceedings, but to "that law of the land in each State, which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure." Hurtado v. California, 110 U.S. 516, 527,535, 4 Sup. Ct. Rep. 111, 292. It therefore embraces such a matter as taxation by a State of personal property having a situs in territory beyond its borders. Union Refrigerator Transit Co. v. Kentucky,199 U.S. 194, 202, 211, 26 Sup. Ct. Rep. 36. It forbids arbitrary interference with any man's liberty of contract. Adair v. United States,208 U.S. 161, 174, 175, 28 Sup. Ct. Rep. 277.

But however broad the scope that has been given to the guaranty of due process of law by such decisions as those to which reference has been made, that there is nothing unrepublican, nor beyond the legitimate sphere of legislative power, in the maintenance of such a system as that long established here for governmental licenses to sell intoxicating liquors, is plain from the fact, of which judicial notice must be taken, that most free governments have, at all periods of time, made that business a subject not of prohibition but of regulation. Either mode of treatment is equally legitimate. State v. Brennan's Liquors,25 Conn. 278, 288; Crowley v. Christensen, 137 U.S. 86, 91,11 Sup. Ct. Rep. 13. At common law it was a business lawful and open to any man. Our statutes do not enlarge but restrict this right. Sopher v.State, 169 Ind. 177, 81 N.E. 913.

Finally it is argued that the statute is essentially a revenue measure, though ostensibly in the interests of public police. The term "police power" has, at bottom, no other meaning than the general power of governing its people and dominions belonging to every sovereignty.McKeon v. New York, N. H. H.R. Co., 75 Conn. 343, 347, 61 L.R.A. 730,53 A. 656. The State may properly restrict a business dangerous, if unregulated, to public morals or security, by the requirement of large license fees. State v. Conlon, 65 Conn. 478, 484, 33 A. 519. It is only important to distinguish between licenses issued by way of regulation and licenses issued for purposes of revenue, in the case of municipal corporations acting under legislative authority. The question then is, For what object was the authority given by the legislature? Such an inquiry is irrelevant in testing the validity of a statute of the State.

There is no error.

In this opinion the other judges concurred.