City of Danbury v. Corbett

94 A.2d 6, 139 Conn. 379, 1953 Conn. LEXIS 140

• Court: Supreme Court of Connecticut
• Decided: January 13, 1953
• Status: Published

Opinions

Baldwin, J.

The plaintiff city brought this action against the defendants, seeking a declaratory judgment that the sale of alcoholic liquor in the grocery store of the defendant First National Stores, Inc., is in violation of the ordinances of the city, and an injunction restraining such sale. The court rendered judgment for the plaintiff and the defendants have appealed.

The parties entered into a stipulation of facts which may be stated briefly. In April, 1936, the city of Danbury legally adopted an amendment to § 1 of its zoning ordinance which added the following definitions: “(v) A ‘Tavern’ is a place where beer or alcoholic liquor is sold under a tavern permit issued by the State Liquor Control Commission, (w) A ‘Grill’ is a place where beer or alcoholic liquor is sold under a restaurant permit issued by the State Liquor Control Commission, (x) A ‘Hotel’ is a place where beer or alcoholic liquor is sold under a hotel permit issued by the State Liquor Control Commission, (y) A ‘Package Store’ is a place where beer or alcoholic liquor is sold under a package store permit issued by the State Liquor Control Commission.” Section 4 of the ordinance forbids, in a business zone, the erection or the use of a building or premises for a tavern, grill, hotel or package store if the premises are within 1000 feet of any other premises used for one of such purposes. The defendant First National Stores, hereinafter called First National, is in possession of a store at 333 Main Street in Danbury, and since March, 1941, has conducted a bona fide retail grocery business therein. The store is within 1000 feet of premises where there are operated, in one instance, a legally licensed package store and, in another, a legally licensed grill. On October 27, 1950, upon the application of the defendant Corbett, as permittee, and First National, as backer, the liquor control commission issued a “grocery store beer permit” for the sale of beer in the backer’s store. The defendants have sold beer, claiming a right to do so by virtue of the permit. Their sales of beer total less than 1 per cent of the store’s gross sales. The single question posed by this appeal is whether a grocery store in which beer is sold under a grocery store beer permit is a “package store” as that term is defined in the ordinance.

When the amendment to the ordinance was passed in April, 1936, the State Liquor Control Act pro-vi'ded for several classes of permits. Among these were “(c) (1) package store permit; (2) package store beer permit.” General Statutes, Cum. Sup. 1935, § 1027c. While the statute required that nothing other than alcoholic and nonalcoholic liquor be sold in a package store, it did permit the sale of beer in a grocery store under a package store beer permit. Cum. Sup. 1935, § 1030c. Since by that statute the sale of beer in the grocery store in question would require a package store beer permit, the store would technically be a package store within the definition of the ordinance, and hence subject to the 1000-foot prohibition, if the statutory classification of permits had remained as it was when the amendment to the ordinance was passed. In 1945, however, the General Assembly added a new class of permit to those already provided for. The new permit was designated a “grocery store beer permit.” Sup. 1945, § 622h(c)(3). A separate fee was prescribed for such a permit. § 631h(c)(3). This legislation created a new, separate and distinct class of permit. Downer v. Liquor Control Commission, 134 Conn. 555, 559, 59 A.2d 290. There is a marked difference between a package store selling alcoholic and nonalcoholic beverages exclusively and a grocery store where the sale of beer represents a very small percentage of the gross sales. The new classification was reasonable and logical and within the power of the legislature. See Ruppert v. Liquor Control Commission, 138 Conn. 669, 675, 88 A.2d 388.

In 1947, the legislature again plainly indicated its intent to deal with the retail sale of beer in grocery stores in a separate manner when it amended § 1030c of the 1935 Cumulative Supplement by providing that “(c) a grocery store beer permit may be granted to any store which is chiefly engaged in the sale of groceries and shall allow the retail sale of beer in standard sized containers not to be consumed on the premises.” Sup. 1947, §728i(c). This section is significantly entitled “Package store permits; grocery store beer permits.” It appears in the same form in the Revision of 1949 as § 4242(e). When the defendants applied in 1950 for a permit to sell beer, they did not ask for a “package store beer permit.” They applied for, and the commission issued to them, a new and distinct class of permit designated by statute as a “grocery store beer permit.”

The defendants’ rights must be determined upon the law as it stood when the permit was issued by the commission. Newington v. Mazzoccoli, 133 Conn. 146, 150, 48 A.2d 729; Hart v. Board of Examiners, 129 Conn. 128, 131, 26 A.2d 780. Their application was granted October 27, 1950, and presumably was filed shortly before that date. The city’s claim that its rights should be determined by the ordinance and statutes of 1936 is untenable. The defendant store is not a package store under the ordinance because it is not “a place where beer or alcoholic liquor is sold under a package store permit issued by the State Liquor Control Commission.”

The plaintiff contends that the definition in the ordinance includes the backer’s premises. It argues that the framers of the ordinance intended that its definition of a package store as “a place where beer or alcoholic liquor is sold under a package store permit issued by the State Liquor Control Commission” would include “all types of package store permits, notwithstanding any different designations or classifications which might thereafter be made by the General Assembly or the Liquor Control Commission.” When legislation contains, as this ordinance does, a specific definition of a package store, the courts are bound to accept that definition. Fox v. Standard Oil Co., 294 U.S. 87, 95, 55 S. Ct. 333, 79 L. Ed. 780; Robinson v. Rogers, 237 N.Y. 467, 472, 143 N.E. 647 ; 2 Sutherland, Statutory Construction (3d Ed.), § 3002. It may have been the intent of the framers of the definition to cover this particular type of liquor outlet without regard to how future enactments of the General Assembly might describe or regulate it. However, in the face of plain language, the court cannot speculate as to what the intent may have been and try to effectuate it. It cannot enlarge upon the definition. Mad River Co. v. Wolcott, 137 Conn. 680, 688, 81 A.2d 119; McManus v. Jarvis, 128 Conn. 707, 711, 22 A.2d 857; 2 Sutherland, op. cit., p. 511. It cannot construe the ordinance to embrace something which obviously it does not. McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed. 816; Franklin & P. Ry. Co. v. Shoemaker, 156 Va. 619, 623, 159 S.E. 100; Western Auto Transports, Inc. v. Cheyenne, 57 Wyo. 351, 361, 118 P.2d 761. It cannot, by a process of interpretation, amend the ordinance. That is a legislative function. Grace Hospital Society v. New Haven, 119 Conn. 146, 154, 174 A. 411; Dean Milk Co. v. Chicago, 385 Ill. 565, 571, 53 N.E.2d 612.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion Jennings and O’Sullivan, Js., concurred.