Rowe v. Colpoys
This text of 137 F.2d 249 (Rowe v. Colpoys) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This case presents, for the first time in this jurisdiction, the question whether or not a license to sell alcoholic beverages, issued by the Alcoholic Beverage Control Board, was subject to levy, under execution, to satisfy a judgment of the Municipal Court of the District of Columbia. 1 The trial court assumed that it was not, but directed a verdict against appellant upon the question of damages, alleged to have been sustained on account of an improper levy. The assumption that such a license is not subject to levy depends, apparently, upon the following language in Richards v. Geiger: 2 “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 S.Ct. 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.” [Italics supplied] But neither the Richards case, nor Crowley v. Christensen to which it refers, gave the slightest consideration to the question of the present case.
One section of the District of Columbia Code provides that: “The writ of fieri *250 facias may be levied on all goods and chattels of the debtor not exempt as aforesaid, * * *.” 3 Another section of the Code provides: “In other cases of equitable interest of the judgment debtor in personal chattels execution may also he levied thereon and the lien thus obtained may be enforced by proceedings in equity.” 4 A third section provides: “The said court may, for the purpose of executing a decree, * * * issue a fieri facias and attachment by way of execution against his lands, tenements, chattels, and credits, or other incorporeal property, to satisfy the decree * * *.” 5 The Code section which provides for executions issued on judgments of the Municipal Court does not specify the subjects of levy except negatively, by providing that such an execution “* * * shall not be a lien on the personal property of the judgment defendant except from the time when it is actually levied, and then it shall have priority over any execution issued out of said District Court * * * after said levy.” [Italics supplied] The same section does limit executions upon Municipal Court judgments as follows: “It shall not be levied on real estate.” 6
The term, goods and chattels, was used to describe property subject to levy under a writ of fieri facias at common law. 7 As generally used today it is a term of broad and inclusive meaning. 8 At common law it had a more limited meaning, when applied to levies in satisfaction of judgments, because equitable and incorporeal interests were required to be reached by proceedings in equity. 9 This distinction has become largely vestigial in character, especially since adoption of the new rules of federal civil procedure. 10 But even before the adoption of those rules, the integration of equitable and legal process for the satisfaction of judgments had been accomplished, for the District of Columbia, through the action of Congress in enacting the statutes which have become those sections of its Code, to which reference has been made. 11 Obviously, there is no long *251 er any substantial reason for preserving disparate categories of property, or of rights or interests in property, out of which to satisfy judgments which chance to be recovered in law or in equity proceedings. The modern trend of legislation is in this direction, and judicial interpretation, unhampered by contrary precedent in the District of Columbia, should go in the same direction.
Éut, even apart from this, and judged by the standard of the common law, the license involved in the present case should be subject to levy. The rule that intangible or incorporeal interests should not be subjected to the process of fieri facias, was applied in the case of such licenses as those of lawyers or physicians to practice their professions, and in the case of corporate franchises issued by legislative enactment. Considerations of public policy and of public convenience, perhaps, argue in favor of such a limitation. In the first case, issuance of the license is based upon qualities of personal probity and professional skill which require the most careful, individual scrutiny, and forbid transfer under any circumstances. In the second case, the state, as a matter of its own convenience and sovereignty, may properly limit the nature and extent of its grant; especially in forbidding transfer of such a franchise under process against it. 12
No such considerations are present here. Express provision, for transfer and assignment of such a license as is involved in the present case, was made in the statute which provides for its issuance in the first place. 13 In the Richards v. Geiger case, the fact was that an effort had been made to satisfy the requirement of the statute in this respect. It was not because, as a matter of public policy, the license, was non-transferable, but because — following an unsuccessful attempt to make a proper transfer, the probate court, nevertheless, authorized the continuance of a retail liquor business — it became necessary for this Court to explain the limited nature of the property right in such a license, and the exclusive authority of the Board to control the business of retailing liquor. 14 But, whether it is a right, the transfer of which is controllable by a court or by some other authority, it is, nevertheless, a valuable right, with attributes of property and transferable value, in the market of alcoholic beverage distribution. 15 No good reason, either of procedure or policy, has been urged, and none is apparent, for exempting this form of property right, and its tangible evidence, from the same process as that to which other property rights are subject.
We conclude, therefore, that the rule of the common law which forbids a levy upon licenses, was confined, and should be confined to non-transferable licenses;
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
137 F.2d 249, 148 A.L.R. 488, 78 U.S. App. D.C. 75, 1943 U.S. App. LEXIS 2788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowe-v-colpoys-cadc-1943.