(Supreme Court of Errors of Connecticut. May 1, 1907.)

1. INTOXICATING LIQUORS-PROCEEDINGS TO PROCURE LICENSE-APPEAL FROM DECISION. In a proceeding to vacate a liquor license under Gen. St. 1902, § 2660, providing that a taxpayer who shall be aggrieved may appeal to the superior court from the decision of the county commissioners granting a liquor license, the court may set aside the action of the commissioners in granting a license when satisfied that the license was improperly granted, though the evidence as presented to the commissioners is not before the court.

2. SAME.

In a proceeding to vacate a liquor license under Gen. St. 1902, § 2660, providing that a taxpayer who shall be aggrieved may appeal to the superior court from the decision of the county commissioners granting a liquor license, the court may hold the granting of the license to be illegal upon being satisfied that the proposed location is not a suitable place for the sale of liquor, though not convinced of miscouduct by the commissioners in other ways.

Appeal from Superior Court, Fairfield County; Milton A. Shumway, Judge.

Application under Gen. St. 1902, § 2660, to set aside as illegal the action of county commissioners in granting a license to sell liquors. From a judgment of the supe rior court vacating the license, William H. Cole, the licensee, appeals. Affirmed.

Jacob B. Klein and Robert G. De Forest, for applicant. John W. Banks, Frank L. Wilder, and James A. Turner, for taxpayer.

PER CURIAM. The construction of Gen. St. 2660, by which that section is held in legal effect to authorize, under the name of "appeal," a proceeding by way of original application to the superior court to set aside certain action of the county commissioners in the matter of liquor licenses, when in excess of their power or in the unlawful abuse of that power, the summary and informal nature of that proceeding, and the power of the superior court in the conduct of a hearing upon the questions thus presented, have been fully considered and determined in recent decisions. Malmo's Appeal, 72 Conn. 1, 6, 43 Atl. 485; Malmo's Appeal, 73 Conn. 232, 234, 238, 47 Atl. 163; Moynihan's Appeal, 75 Conn. 358, 360, 361, 362, 363, 366, 53 Atl. 903; Burns' Appeal, 76 Conn. 395, 396, 397, 398, 56 Atl. 611; Hewitt's Appeal, 76 Conn. 685, 688, 58 Atl. 231; Londry's Appeal, 79

Conn. 1, 5, 63 Atl. 293. It follows that the action of the trial court in this case in overruling the appellee's claim of law that the court could not set aside the action of the commissioners in issuing the license, unless satisfied that upon the case as presented to them the license was improperly or illegally issued, is manifestly correct.

The further claim, apparently made, that the judge cannot hold the issue of a license to be illegal upon being clearly satisfied that the licensee does not possess an essential statutory qualification, unless he is also convinced of misconduct by the commissioners in other ways, is untenable. It is not legally impossible that a licensee's place of business may be found by the trial judge to be so manifestly unsuitable to the sale of liquor by the licensee as to justify a conclusion that the license for such sale was illegally issued.

The appellee also seems to claim in his brief that in this case it appears from the memorandum of decision, judgment, and finding as printed in the record that the trial judge did not find that the commissioners acted illegally, nor, in fact, believe that the place of business was so obviously and undeniably unsuitable to the sale of liquor by the licensee as to justify the conclusion that the commissioners acted illegally in issuing the license. Certainly such conduct should not be imputed to a judge when it does not surely and unmistakably appear in the record, and in this case it does not so appear. On the contrary, the judge indicates that he considered the unsuitability of the place as incident to determining whether the commissioners acted within the limits of their power; and, in overruling the appellee's claim that the court could not upon the evidence produced find that the commissioners had acted illegally or in abuse of their power, the judge implies that he did find illegal conduct upon evidence he deemed sufficient to support that finding. This finding of the judge, that the commissioners acted in excess of their power and illegally in issuing a license to sell at a place which was not a suitable one, is the real judgment of the court. There is in this summary and informal proceeding no prescribed way of expressing the finding in a formal order or judgment. The way followed by the trial judge of recording his finding that in fact "the place in question is not a suitable one in which to sell spirituous and intoxicating liquors," and the consequent conclusion of the law that the license is vacated or revoked indicates the substance of the judgment, and for practical purposes is sufficient. In a case like this, however, a way more in accord with the legal effect of section 2660, Gen. St. 1902, in authorizing under the name of "appeal" this application as settled by our decisions would be an explicit statement of the finding that the commissioners acted in excess of their power and

Where, in an action for injuries on a city crosswalk, the jury's right to determine the facts, independent of any opinion of the court, was unmistakably suggested to them in the court's charges, an instruction with reference to the evidence introduced to support plaintiff's claim that a hole existed in the crosswalk by which she was injured was not objectionable for failure to add a statement that, notwithstanding what the court might say or think, it was the province of the jury alone to pass on the evidence and determine what was thereby established.

Appeal from Court of Common Pleas, New Haven County; William L. Bennett, Judge. Action by Annie Houghton against the city of New Haven for injuries claimed to have been caused by a defective crosswalk in defendant city. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The defect in question is alleged to have been a hole in a crosswalk leading from one corner of a street to an opposite corner. It is alleged that the plaintiff, while a lawful traveler upon the highway, tripped and fell into this hole while she was in the act of crossing the street and just as she had left the sidewalk. The accident occurred on February 25, 1905. The statutory notice was alleged to have been given to the defendant on April 25th following, and therefore more than 30 days thereafter. Upon the trial to the jury the defendant claimed to have shown that any

depression which may have existed in the street was occasioned by formations of snow and ice upon its surface, and not by any improper inequalities therein. Two boys and one man were produced by the plaintiff as witnesses to testify to the existence and character of the alleged hole. All had observed the spot only when it was covered by water and slush, which was the condition of the street at the time of the accident, and no one of them professed to have seen the underlying surface of the ground. There was some want of harmony in their testimony as to the precise location of what they agreed in calling the hole, and their descriptions of the conditions affecting the surface of the street were vague and indefinite.

During the charge the court, in commenting upon the plaintiff's claim in this regard and this testimony, used the following language: "Now, gentlemen, when you speak of a 'hole,' you know that there may be all sorts of depressions in the ground which may be called by the witnesses 'holes.' If there were a deep hole, two or three feet deep, upon that crosswalk, and the city had notice of it and left it there, you would say undoubtedly that that was such a defect in the highway that the city ought to be liable, if a person fell into it, whereas, if there was merely an uneven de pression, an unevenness in the surface, even a depression which might possibly be called a hole, you might, if you knew exactly what it was, find that it was so shallow or so situated that it was reasonably safe for persons to pass over, and therefore that the city was not liable for its remaining there, if it knew that it was there. It is therefore of very great consequence in this case that you should know, and should find from the evidence, what that hole was, and you should try and find out from the evidence what the hole in the surface of the highway was, if there was a hole there at all, in order to ascertain whether its remaining there and its being suffered to remain there made the crossing unreasonably dangerous for public travel." And later on: "You will consider all the evidence that has been given in regard to that hole, and consider whether you have had any witness who testified to you in detail and with clearness of observation in regard to a hole in that crosswalk at this time and place. It would have been, it seems to the court, easy, after this plaintiff fell, to have inspected and to have shown to the jury beyond a question that there was a hole there, and to have described it; but we have in this case but the testimony of the children, the testimony of the plaintiff, and the testimony of Mr. the gentleman, the Italian named Turelli, possibly of another witness, in general terms, not describing the hole, so that I, at least, have not derived a clear idea of the depressions that they claim were in the highway itself; and I desire to call your attention particular. ly to this point, because it is fair and just that the city should only be called into ac

count, should only pay, for its breach of duty."

The plaintiff presented the three following requests to charge, no one of which was specifically charged: "(1) While the burden is on the plaintiff to prove her case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon the plaintiff's case preponderates in her favor, although but slightly, that would be sufficient to warrant the jury in finding in her favor. (2) Notice of the defect in the street crossing or sidewalk may be reasonably inferred where it is of such a character or has continued for such a length of time as that the officers of the city charged with the supervision of its street crossings or sidewalks might and probably would have discovered it if they had used ordinary care in the discharge of their duty. Actual notice need not be shown in all cases.

Notice may be inferred from the notoriety of the defect, or from its being so visible and apparent and having continued for such a length of time as that in the exercise of reasonable observation and care the proper officers of the city ought to have known of and remedied or removed the defect or obstruction. (3) Until the plaintiff became aware of any claimed defect or dangerous condition in the crosswalk, she had a right to assume that the city had performed its duty in keeping the same in a reasonably safe condition for her to travel thereon; and, if you find that the plaintiff, not knowing of the existence of a hole in the crosswalk, fell therein and was injured, and that said hole was there long enough for the city to have discovered the same, and that the plaintiff was not negligent in falling therein, then the defendant is liable for such damages as she had suffered therefrom."

In the course of the court's instructions as to the defendant's duty in respect to the care and maintenance of that part of the street where the plaintiff claimed to have been injured, it used the following part of a sentence: "The law does not require that crosswalks, so-called, used by foot passengers in crossing the roadway of the street, shall be constructed or maintained in the same manner that sidewalks intended exclusively for foot travel are constructed and maintained.

The failure of the court to charge as requested, its instructions hereinbefore recited, and its failure to tell the jury that its opinion as to the weight or effect of the evidence was not binding upon them, and that they were the sole judges of the facts as disclosed by the evidence, are assigned as reasons of appeal.

quests to charge. They also contained a careful and correct statement of the law attempted to be covered by the third in so far as was necessary for the proper guidance of the jury under the issues and upon the claims of the parties. The plaintiff was entitled to nothing more. State v. Rathbun, 74 Conn. 524, 528, 51 Atl. 540; McGarry v. Healey, 78 Conn. 365, 367, 62 Atl. 671.

The extract from the court's instructions as to the defendant's duty of maintenance is made a ground of appeal, for the reason that the statement embodied in it was inconsistent with the correct proposition that the defendant had resting upon it the duty of using reasonable care to keep both sidewalk and crosswalk alike in a reasonably safe condition, or at least was calculated to mislead the jury into the belief that the duty owed with respect to the crosswalk was something less than the true duty. The court, immediately before using the language criticised, had clearly stated the correct rule of duty. In the language which is now wrested from its context for criticism there is nothing inconsistent with that rule, nothing which is not literally true, and nothing which, considered in connection with its context, was susceptible of producing a false impression. The statements of the court in this connec tion were not only correct, but such as ought to have been made for a clear understanding on the part of the jury of the defendant's duty in the premises.

The observations of the court with respect to the alleged hole were well within its right of comment upon the evidence as that right has been repeatedly defined by this court. Banks v. Connecticut Ry. & Lgt. Co., 79 Conn. 116, 122, 64 Atl. 14, and cases there cited. The duty resting upon the court to see that evidence might not be misused was in the present case emphasized by the fact that by reason of the date of the notice recovery could only be had upon proof of a defect in the structure of the highway and by the fact that the question of the existence of such a defect was involved in difficulty and uncertainty by reason of the admitted presence of water and slush, and the claimed presence of underlying ice formations creating any irregularities in the crossing which may have existed at the time of the accident.

Walter J. Walsh, for appellant. Leonard M. Daggett and James Kingsley Blake, for appellee.

with a false conception of their power or duty.

There is no error. The other Judges concurred.

(79 Conn. 697)

STATE ex rel. DOOLAN v. THE GREYHOUND.

(Supreme Court of Errors of Connecticut. May 10. 1907.)

FISH-OYSTER BEDS STATUTORY PROVISIONSSEARCHES AND SEIZURES.

Gen. St. 1902, § 3241, provides for the seizure and sale under order of court of any boat or vessel illegally used in dredging oysters or in depositing and dumping material. It was charged in the complaint that defendant's boat illegally dredged on ground located in state jurisdiction, in the possession of the May Oyster Company, which owned a franchise for planting and cultivating oysters, etc., on the ground. Held, that the statute does not apply to dredging on private grounds, and hence defendant's boat could not be seized and sold as therein provided for the offense committed.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Proceeding by the state, on the relation of Peter Doolan, against the Greyhound, Emma Sprague owner, under section 3241 of the General Statutes 1902 for the seizure and sale of a boat, etc., claimed to have been illegally used in dredging, brought before the city court of Bridgeport, and thence by appeal of the owner to the court of common pleas, where it was tried to the jury, and a verdict and judgment rendered in favor of the owner, from which an appeal to this court in the name of the state by the officer who made the seizure was taken. Affirmed.

Stiles Judson, Edward H. Rogers, Howard H. Knapp, and Albert McC. Mathewson, for appellant. Robert E. De Forest and Jacob B. Klein, for appellee.

HALL, J. This is a proceeding under section 3241 of the General Statutes 1902, instituted by one Peter Doolan, a deputy sheriff of Fairfield county, hereinafter referred to as the "plaintiff," for the condemnation of a certain boat named Greyhound, seized by him at Bridgeport on May 21, 1906, as having been illegally used in dredging. On said day, after such seizure, the plaintiff presented to the city court of Bridgeport a written notice or complaint, stating that said boat had been seized as having been illegally used in dredging, the first paragraph of which, as afterward amended, alleged that "on the 8th day of May, 1906, at about 1 o'clock in the afternoon, said boat did illegally dredge on ground located in state jurisdiction, within the meridian boundary lines of the town of Bridgeport off Seaside Park so called, said ground being known as lots 801, 802, and 803, and in the possession of the May Oyster Company, a corporation organized under the laws of the state of Connecticut, and located in the town of Bridgeport, which was the owner of the

perpetual franchise for planting and cultivating oysters, clams, and mussels on said ground, and all without the consent of the owner of said grounds." Paragraphs 2 and 3 of the complaint, under which no questions are made, allege that on said 8th of May, while at work on natural oyster beds of this state, said boat neglected to display upon her mainsail the number of her license, as required by law, and that while working on such natural beds said boat unlawfully displayed a certain number which was not her license number. One Herbert Clark was the manager of said boat, and one Emma Sprague, who appeared at the trial, and hereinafter called the defendant, was the owner thereof. Upon the trial evidence having been offered by the plaintiff that said lot No. 801, owned by said May Oyster Company, was bounded on the north and east by the Bridgeport natural bed, upon which latter bed said boat was duly licensed to dredge, and that on said 8th of May said boat, while sailing northerly, dredged on said lot No. 801 some 400 feet before crossing the north line of said lot, and some evi. dence having been introduced by the defendant in contradiction of portions of the plaintiff's evidence, the parties stipulated that, without further evidence, the court, by instructing the jury, should decide the question whether upon the plaintiff's evidence said boat could properly be found to have been illegally used in dredging, within the meaning of the provisions of section 3241, while so dredging upon private oyster grounds, in the absence of the owner, and the court thereupon charged the jury that "dredging upon a private ground would not be considered to be illegal dredging under the terms of the statute in question," and directed the jury to return a verdict for the defendant.

The sole question before us is whether this instruction was correct. In support of the charge of the court it is claimed, first, that section 3241, under which the seizure was made, and which is an exercise of the police power of the state, does not purport to authorize the confiscation of boats used in dredging upon private oyster grounds; and, second, that, if it does, it is an unreasonable and invalid exercise of the police power of the state, in so far as it authorizes the confiscation of private property for the protection of individual and not of public interests. The language of section 3241 is as follows: "All sheriffs, deputy sheriffs, oyster police and constables shall, and any other persons may, seize any boat or vessel illegally used in dredging, or in depositing and dumping material, with its tackle, apparel and furniture, wherever found within one year thereafter; and shall forthwith give notice to two justices of the peace, or if in New Haven County or Fairfield County, to any city, town or borough court, in the county where the seizure was made, which authority shall

forthwith order reasonable notice to be given to the person who is in possession of the property seized, or to the owner thereof, if known, of the time and place of trial; and shall at the time and place appointed determine whether such property was used contrary to law, and if found to have been so used shall order it to be sold at such time and in such manner as said authority shall direct; and the avails thereof, after deducting all costs and charges which said authority may allow, shall be paid half to the person who made the seizure and half to the town where the offense was committed.

A right of appeal to the court of common pleas or superior court is given to any party aggrieved by such order. The unconstitutionality of this section is urged, and especially in so far as its provisions are intended to apply to such an act of dredging over a private bed, as that shown by the evidence, upon the grounds that it authorizes an unreasonable seizure of one's "possessions" by permitting them to be taken without a warrant by a person who is not an officer at a time long after the commission of the offense, and permits the appropriation by the state of the property of an innocent person, without compensation therefor, even when the offense committed has worked no injury either to the public or to any individual. Certainly, before subjecting the property of the defendant to such seizure and confiscation, it ought clearly to appear from the language of our statutes that the provisions of this section were intended to apply to the offense shown to have been committed in the present case.

Although the question before us must be determined by the law as it existed when the offense complained of was committed, and which is found in the General Statutes of 1902, some light may be thrown upon the meaning of the section of those laws under consideration by a review of some of the previous legislation upon the same subject. In 1848 a law was passed, the first section of which prohibited any person who had not been an actual inhabitant or resident of this state during the preceding six months from taking, raking, or gathering any oysters in any waters of this state, and imposed a forfeiture of $20 for a violation of such law, and the second section of which authorized a seizure and sale, similar to that described in said section 3241, of any vessel, etc., used in taking or raking oysters contrary to said provisions of that act. Pub. Acts 1848, p. 56, c. 66. In the Revision of 1849, in the same chapter with this act of 1848, we find a law imposing no other penalty than a forfeiture of $7, and in certain cases of $25, and imprisonment in the workhouse for entering upon and gathering oysters from any private inclosure staked out as provided by law in any of the navigable waters of the state. Revision of 1849, pp. 399-401, c. 2. In 1855 an act was passed, which was extended in 1878, and is now embodied in section 3247 of the

General Statutes of 1902, punishing by fine and imprisonment, but without any forfeiture of boats, etc., injuries to inclosures marked and staked out according to law. Pub. Acts 1855, pp. 113, 114, c. 92; Pub. Acts 1878, p. 275, c. 24, § 6. Afterward acts were passed expressly extending such penalty of seizure and sale of vessels to certain cases of taking, raking, or injuring oysters planted in private designated grounds, and to cases of injury to designated inclosures by willfully depositing mud upon the grounds so inclosed. Pub. Acts 1865, p. 61, c. 56; Pub. Acts 1877, p. 199, c. 93.

The first act making dredging unlawful appears to have been passed in 1871. Its first section prohibited the collecting of any shells or shell fish by means of dredges in parts of New Haven Harbor and its adjacent waters and of the navigable waters of East Haven, under a penalty of from $25 to $100 or imprisonment; and its second section authorized a seizure and sale similar to that described in said section 3241 of any vessel, etc., employed in dredging contrary to the provisions of said first section. Pub. Acts 1871, p. 676, c. 119. While that law was in force, an act was passed in 1874 and extended in 1878, and now embodied in section 3246 of the General Statutes of 1902, punishing by fine and imprisonment the willful taking and carrying away of oysters lawfully planted upon any bed within the waters of this state, but without imposing the penalty of seizure and sale of any boat, etc., used in the commission of such offense. Pub. Acts 1874, p. 205, c. 42; Pub. Acts 1878, p. 275, c. 24, § 5, and page 311, c. 85. These acts of 1871, 1874, and 1878 remained practically unchanged in the Revision of 1875, excepting that in place of the words of the original act of 1871, "any vessel * used

in dredging contrary to the provisions of the first section of this act," we find in the Revision of 1875 the words, "any boat or vessel illegally used in dredging." Revision 1875, pp. 216, 217, c. 4, §§ 16, 22, 23. And we also find in the same Revision (page 218, c. 4, § 26) a provision forbidding any person from taking, raking or gathering any oysters in any of the waters of this state on board of any boat unless he or his employer has been a resident or actual inhabitant of the state during the preceding six months, but imposing no punishment or penalty whatever for such an offense; but by an act passed in 1876 any boat, etc., so used was made subject to seizure and sale, in the manner now provided in section 3241. Pub. Acts 1876, p. 104, c. 39. From 1882 to 1895 the following acts were passed, in each of which any boat, etc., used in violation of the provisions of the act was expressly made liable to seizure and sale by proceedings similar to those described in section 3241 of the General Statutes of 1902: In 1882 and 1883, acts now embodied in section 3242 of the General Statutes of 1902, forbidding the deposit