As the case of Apel's Appeal presents more clearly the ruling of the Superior Court under which it dismissed both appeals, my reasons for dissent refer especially to that case.
Two statutes were passed in 1901, which went into effect on the same day and related to the same subject. One provided that "any board or court before which an application for license is heard may consider the number of existing licensed places, in the town wherein the license is applied for, as bearing upon the question of suitability of place." Public Acts of 1901, p. 1263, Chap. 126 (Rev. 1902, § 2645). The other, entitled "An Act concerning Appeals from County Commissioners," was as follows: "The county commissioners may reject an application for license for the sale of spirituous or intoxicating liquors, upon finding that there already exists in the town or in the vicinity of the place for which a license is applied, a sufficient number of licensed places; subject to a right of appeal by the applicant from such doings of said commissioners to the superior court of the county in the same manner as appeals are now taken, and said court is hereby empowered to hear and determine such *Page 367 appeals." Ibid., p. 1387, Chap. 183 (Rev. 1902, § 2645). Soon after these statutes took effect, the appellant applied for a license to sell liquors at a certain place in Manchester, and the county commissioners refused to grant it on the ground that this place was in a purely residential part of the town, which was already supplied with a sufficient number of saloons. He thereupon appealed to the Superior Court, where he made no claim that the commissioners had acted arbitrarily or from an improper motive in finding that there were already saloons enough in the locality in question, but did claim, and offer evidence tending to show, that in fact there were not enough of them to supply the wants of the community. The court, however, ruled that "when the county commissioners had fairly determined the number of saloons which should be licensed in a locality, the court was incompetent to determine that a greater number should be licensed, and held that said place was not a suitable place to receive a license, solely upon the ground, as found by the county commissioners, that the locality is already supplied with a sufficient number of saloons," and thereupon dismissed the appeal.
To support this ruling, it is necessary to hold, either that the legislation of 1901 was unconstitutional and void, or that its apparent meaning is not its real meaning.
In previous cases we have affirmed the following propositions: The function of determining who are suitable persons to receive licenses for selling liquors is one which lies on the border line of the division between executive and judicial power, and it is competent for the legislature to commit its exercise either to judicial or executive officers, as may be found necessary for the most efficient enforcement of its police regulations. Hopson's Appeal, 65 Conn. 140,146. If it be committed in the first instance to executive officers, it can be committed, at a second stage of proceeding, for the purpose of reviewing their doings, to judicial officers, and whenever so brought before a court becomes a cause of a judicial nature. Beard's Appeal, 64 Conn. 526. When appellate jurisdiction of an application for a *Page 368 license is given to a court, it may be granted the same discretionary powers in determining whether the applicant is a suitable person, and his place of business a suitable place, which primarily belonged to the original executive tribunal.Hopson's Appeal, 65 Conn. 140, 149.
If, therefore, the intent of the legislation of 1901 was to invest the Superior Court with power to consider the number of saloons already existing in a certain locality, with a view of coming to an independent judgment of its own as to whether there were so many that no other was needed there, it would seem that there could be no constitutional objection to giving full effect to such intent. Malmo's Appeal,72 Conn. 1, 5.
The remaining question is as to whether such is the fair construction of the statutes in question. In Chapter 126, the reference to "any" court can only refer to the Superior Court, for no other has jurisdiction in respect to applications for liquor licenses; and to an appeal to that court, for in no other way has such jurisdiction been conferred upon it. The Superior Court was, therefore, it seems to me, expressly invested with power, upon an appeal from the county commissioners, to consider the number of places already licensed, as tending to show whether the place for which the applicant sought a license was a suitable one. Whatever facts a court can lawfully consider must be the proper subjects of evidence. In the case at bar, the trial court heard evidence as to the number of saloons already existing; but then proceeded to deny it any legal effect, on the ground that it had no power to determine whether the number which it found to exist was a sufficient number. It seems to me that the issue on such an appeal must be whether a license ought to be granted or refused, and that it was as bearing on that ultimate question that Chap. 126 meant that the fact which it allowed to be introduced should be considered. I think that it does violence to its plain terms, when read in connection with the unqualified appeal given by Chap. 183, to limit the jurisdiction of the court, in respect to that fact, to determining whether the number had been properly ascertained and *Page 369 properly considered by the county commissioners. If the words of a statute, under which it is claimed that functions which are but quasi-judicial have been imposed upon a court, are doubtful, that construction may sometimes with propriety be adopted which best promotes that general scheme of the distribution of the powers of government between three departments, which is a leading feature of our constitutional system. On that principle, a provision in a previous statute, relating to appeals from a refusal of a license by county commissioners (Public Acts of 1899, p. 1138, Rev. 1902, § 2658), was held not to constrain the Superior Court to make a finding as to whether too many saloons were already in existence.Malmo's Appeal, 73 Conn. 232, 237. But the Acts of 1901 were passed after that decision, and presumably in view of it. In my opinion they were intended to make plain and did make plain an intent which the Act of 1899 left doubtful. How far it is wise to go in making our courts a place of resort for obtaining licenses to sell liquor, it is for the General Assembly to say, so long as it imposes on them no duty which cannot reasonably be considered as of a judicial nature. Constitution of Conn., Art. V, § 1. The function of passing upon applications for such licenses is one both judicial and executive, and can properly be committed to the judicial department or to the executive department, or to both. Hopson'sAppeal, 65 Conn. 140, 146. I therefore dissent from the opinion and judgment of the court.