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it related to a time since the commencement of this action.
As the facts are stated in the record, we discover no error in the ruling of the trial court excluding the question asked by the defendant of its witness Dr. Lewis, whether he was informed of the sources from which the ice was taken which he had inspected the previous summer.
There is no error. The other Judges concurred.
(79 Conn. 679)
Appeal of COLE. (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.
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 commission. ers 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 liguor 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 suffcient 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 judge ment, and for practical purposes is suffcient. 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
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
illegally in issuing the license, and that the depression which may have existed in the license is vacated. The conduct of the judge street was occasioned by formations of snow in this case, after a lawful hearing given and ice upon its surface, and not by any imthe parties, in reaching his conclusion from proper inequalities therein. Two boys and all the evidence produced that the commis one man were produced by the plaintiff as witsioners acted illegally in issuing a license to nesses to testify to the existence and char. the appellee to sell liquor at the place men acter of the alleged hole. All had observed tioned, is not reviewable.
the spot only when it was covered by water There is no error in the judgment of the and slush, which was the condition of the superior court.
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 (79 Conn. 659)
of harmony in their testimony as to the preHOUGHTON V. CITY OF NEW HAVEN. cise location of what they agreed in calling (Supreme Court of Errors of Connecticut.
the hole, and their descriptions of the condiMay 1, 1907.)
tions affecting the surface of the street were 1. TRIAL-REQUEST TO CHARGE-REFUSAL.
vague and indefinite. It was not error for the court to refuse During the charge the court, in commenting plaintiff's request to charge, which was substan upon the plaintiff's claim in this regard and tially and correctly covered by the charge of this testimony, used the following language: the court.
“Now, gentlemen, when you speak of a 'hole,' [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, 88 651-659.)
you know that there may be all sorts of de
pressions in the ground which may be called 2. MUNICIPAL CORPORATIONS DEFECTIVE SIDEWALKS
by the witnesses 'boles.' If there were a deep MAINTENANCE - DUTY - INSTRUCTIONS.
hole, two or three feet deep, upon that crossWhere the court had previously stated the walk, and the city had notice of it and left it correct rule of a city's duties of maintaining there, you would say undoubtedly that that crosswalks as a part of the streets, a subse
was such a defect in the highway that the quent instruction that the law did not require that crosswalks used by foot passengers should
city ought to be liable, if a person fell into it, be constructed or maintained in the same man whereas, if there was merely an uneven de ner that sidewalks, intended exclusively for foot pression, an unevenness in the surface, even a travel, were constructed and maintained, was not objectionable as misleading the jury to be
depression which might possibly be called a lieve that the duty owed with respect to the hole, you might, if you knew exactly what it crosswalk was something less than the true was, find that it was so shallow or so situated legal duty.
that it was reasonably safe for persons to 8. TRIAL-INSTRUCTIONS COMMENT ON EVI pass over, and therefore that the city was not DENCE.
liable for its remaining there, if it knew that Where, in an action for injuries on a city crosswalk, the jury's right to determine the
it was there. It is therefore of very great facts, independent of any opinion of the court, consequence in this case that you should was unmistakably suggested to them in the know, and should find from the evidence, court's charges, an instruction with reference
what that hole was, and you should try and to the evidence introduced to support plaintiff's claim that a hole existed in the cross walk by
find out from the evidence what the hole in which she was injured was not objectionable the surface of the highway was, if there was for failure to add a statement that, notwith a hole there at all, in order to ascertain standing what the court might say or think, it was the province of the jury alone to pass on
whether its remaining there and its being sufthe evidence and determine what was thereby
fered to remain there made the crossing unestablished.
reasonably dangerous for public travel.” And
later on: “You will consider all the evidence Appeal from Court of Common Pleas, New
that has been given in regard to that hole, Haven County; William L. Bennett, Judge.
and consider whether you have had any wit.. Action by Annie Houghton against the city
ness who testified to you in detail and with of New Haven for injuries claimed to have
clearness of observation in regard to a hole been caused by a defective crosswalk in de
in that crosswalk at this time and place. It fendant city. From a judgment in favor of
would have been, it seems to the court, easy, defendant, plaintiff appeals. Affirmed.
after this plaintiff fell, to have inspected and The defect in question is alleged to have to have shown to the jury beyond a question been a hole in a crosswalk leading from one that there was a hole there, and to have decorner of a street to an opposite corner. It is scribed it; but we have in this case but the alleged that the plaintiff, while a lawful trav testimony of the children, the testimony of eler upon the highway, tripped and fell into the plaintiff, and the testimony of Mr. this hole while she was in the act of crossing the gentleman, the Italian named Turelli, posthe street and just as she had left the side- sibly of another witness, in general terms, not walk. The accident occurred on February describing the hole, so that I, at least, hare 25, 1905. The statutory notice was alleged not derived a clear idea of the depressions to have been given to the defendant on April that they claim were in the highway itself ; 25th following, and therefore more than 30 and I desire to call your attention particular. days thereafter. Upon the trial to the jury ly to this point, because it is fair and just the defendant claimed to have shown that any that the city should only be called into ac
count, should only pay, for its breach of quests to charge. They also contained a duty."
careful and correct statement of the law at. The plaintiff presented the three following tempted to be covered by the tbird in so far requests to charge, no one of which was spe as was necessary for the proper guidance of cifically charged: "(1) While the burden is the jury under the issues and upon the claims on the plaintiff to prove her case by a pre of the parties. The plaintiff was entitled to ponderance of the evidence, still, if the jury nothing more. State v. Rathbun, 74 Conn. ind that the evidence bearing upon the plain. 524, 528, 51 Atl. 540; McGarry v. Healey, 78 tiff's case preponderates in her favor, al-Conn. 365, 367, 62 Atl. 671. though but slightly, that would be sufficient to The extract from the court's instructions warrant the jury in finding in her favor. (2) as to the defendant's duty of maintenance is Notice of the defect in the street crossing or
made a ground of appeal, for the reason that sidewalk may be reasonably inferred where the statement embodied in It was inconsistIt is of such a character or has continued for ent with the correct proposition that the de such a length of time as that the officers of fendant had resting upon it the duty of using the city charged with the supervision of its reasonable care to keep both sidewalk and street crossings or sidewalks might and prob
crosswalk alike in a reasonably safe condiably would have discovered it if they had tion, or at least was calculated to mislead used ordinary care in the discharge of their
the jury into the belief that the duty owed duty. Actual notice need not be shown in all with respect to the crosswalk was something cases. Notice may be inferred from the no
less than the true duty. The court, immeditoriety of the defect, or from its being so
ately before using the language criticised, visible and apparent and having continued for
had clearly stated the correct rule of duty. such a length of time as that in the exercise In the language wbich is now wrested from of reasonable observation and care the proper
its context for criticism there is nothing inofficers of the city ought to have known of
consistent with that rule, nothing which 19 and remedied or removed the defect or ob
not literally true, and nothing which, construction. (3) Until the plaintiff became
sidered in connection with its context, was aware of any claimed defect or dangerous
roducing a false impression. condition in the crosswalk, she had a right | The statements of the court in this connecto assume that the city bad performed its du- tion were not only correct, but such as ought ty in keeping the same in a reasonably safe
to have been made for a clear understanding condition for her to travel thereon; and, if on the part of the jury of the defendant's you find that the plaintiff, not knowing of duty in the premises. the existence of a hole in the crosswalk, fell
The observations of the court with respect therein and was injured, and that said hole to the alleged hole were well within its right was there long enough for the city to have of comment upon the evidence as that right discovered the same, and that the plaintiff bas been repeatedly defined by this court. was not negligent in falling therein, then the Banks v. Connecticut Ry. & Lgt. Co., 79 defendant is liable for such damages as she Conn. 116, 122, 64 Atl. 14, and cases there had suffered therefrom."
cited. The duty resting upon the court to In the course of the court's instructions as see that evidence migbt not be misused was to the defendant's duty in respect to the care
in the present case emphasized by the fact and maintenance of that part of the street that by reason of the date of the notice re where the plaintiff claimed to have been in covery could only be had upon proof of a de Jured, it used the following part of a sen
fect in the structure of the highway and by tence: “The law does not require that cross the fact that the question of the existence of walks, so-called, used by foot passengers in , such a defect was involved in difficulty and crossing the roadway of the street, shall be uncertainty by reason of the admitted pres. constructed or maintained in the same man ence of water and slush, and the claimed ner that sidewalks intended exclusively for presence of underlying ice formations creatfoot travel are constructed and maintain- ing any irregularities in the crossing which ed.
may have existed at the time of the accident. The failure of the court to charge as re
The complaint made in connection with quested, its instructions hereinbefore recited, these comments that the court in order to and its failure to tell the jury that its opin- avoid the commission of error was required ion as to the weight or effect of tbe evidence to accompany them with a statement that was not binding upon them, and that they notwithstanding what the court might say were the sole judges of the facts as disclosed or think it was within their province alone by the evidence, are assigned as reasons of to pass upon the evidence and determine appeal.
what was thereby established is not well Walter J. Walsh, for appellant. Leonard
founded. The right of the jury in this regard M. Daggett and James Kingsley Blake, for underlay all that was said to them and was
unmistakably suggested in all the court's inappellee.
structions. Express statement could scarcePRENTICE, J. (after stating the facts). ly have made the matter more clear. It is The court's instructions embodied in its own
inconceivable that the Jury, after hearing the language the substance of the first two recharge, could have gone to their deliberations
with a false conception of their power or perpetual franchise for planting and cultivatduty.
ing oysters, clams, and mussels on said There is no error. The other Judges con ground, and all without the consent of the curred.
owner of said grounds." Paragraphs 2 and 3 of the complaint, under which no ques
tions are made, allege that on said 8th of (79 Conn. 697)
May, while at work on natural oyster beds STATE ex rel. DOOLAN V. THE GREY
of this state, said boat neglected to display HOUND.
upon her mainsail the number of her license, (Supreme Court of Errors of Connecticut. May
as required by law, and that while working 10. 1907.)
on such natural beds said boat unlawfully FISU-OYSTER BEDS.STATUTORY PROVISIONS
displayed a certain number which was not SEARCHES AND SEIZURES. Gen. St. 1902, § 3241, provides for the
her license number One Herbert Clark was seizure and sale under order of court of any boat the manager of said boat, and one Emma or vessel illegally used in dredging oysters or Sprague, who appeared at the trial, and in depositing and dumping material. It was
hereinafter called the defendant, was the charged in the complaint that defendant's boat illegally dredged on ground located in state ju owner thereof. Upon the trial evidence haprisdiction, in the possession of the May Oyster ing been offered by the plaintiff that said Company, which owned a franchise for plant lot No. 801, owned by said May Oyster Com. ing and cultivating oysters, etc., on the ground. Held, that the statute does not apply to dredg.
pany, was bounded on the north and east ing on private grounds, and hence defendant's by the Bridgeport natural bed, upon which boat could not be seized and sold as therein latter bed said boat was duly licensed to provided for the offense committed.
dredge, and that on said 8th of May said Appeal from Court of Common Pleas, boat, while sailing northerly, dredged on: Fairfield County; Howard J. Curtis, Judge. said lot No. 801 some 400 feet before cross
Proceeding by the state, on the relation of ing the north line of said lot, and some evi. Peter Doolan, against the Greyhound, Emma dence having been introduced by the deSprague owner, under section 3241 of the fendant in contradiction of portions of the General Statutes 1902 for the seizure and plaintiff's evidence, the parties stipulated sale of a boat, etc., claimed to have been il that, without further evidence, the court, by legally used in dredging, brought before the instructing the jury, should decide the ques. city court of Bridgeport, and thence by ap tion whether upon the plaintiff's evidence peal of the owner to the court of common said boat could properly be found to bave pleas, where it was tried to the jury, and a been illegally used in dredging, within the verdict and judgment rendered in favor of meaning of the provisions of section 3241, the owner, from which an appeal to this while so dredging upon private oyster court in the name of the state by the officer grounds, in the absence of the owner, and who made the seizure was taken. Affirmed, the court thereupon charged the jury that Stiles Judson, Edward H. Rogers, Howard
“dredging upon a private ground would not H. Knapp, and Albert McC. Mathewson, for
be considered to be illegal dredging under appellant. Robert E. De Forest and Jacob the terms of the statute in question,” and B. Klein, for appellee.
directed the jury to return a verdict for
the defendant. HALL, J. This is a proceeding under sec The sole question before us is whether this tion 3241 of the General Statutes 1902, in instruction was correct. In support of the stituted by one Peter Doolan, a deputy sher
charge of the court it is claimed, first, that iff of Fairfield county, hereinafter referred section 3241, under which the seizure was to as the "plaintiff,” for the condemnation made, and which is an exercise of the police of a certain boat named Greyhound, seized power of the state, does not purport to auby him at Bridgeport on May 21, 1906, as
thorize the confiscation of boats used in having been illegally used in dredging. On dredging upon private oyster grounds; and, said day, after such seizure, the plaintiff second, that, if it does, it is an unreasonable presented to the city court of Bridgeport a
and invalid exercise of the police power of written notice or complaint, stating that said the state, in so far as it authorizes the conboat had been seized as having been illegally fiscation of private property for the protecused in dredging, the first para graplı of tion of individual and not of public interests. which, as afterward amended, alleged that The language of section 3241 is as follows: "on the 8th day of May, 1906, at about 1 "All sheriffs, deputy sheriffs, oyster police o'clock in the afternoon, said boat did il and constables shall, and any other persons legally dredge on ground located in state ju may, seize any boat or vessel illegally used risdiction, within the meridian boundary lines in dredging, or in depositing and dumping of the town of Bridgeport off Seaside Park material, with its tackle, apparel and furniso called, said ground being known as lots ture, wherever found within one year there801, 802, and 803, and in the possession of after; and shall forthwith give notice to the May Oyster Company, a corporation or two justices of the peace, or if in New Haven ganized under the laws of the state of Con County or Fairfield County, to any city, town necticut, and located in the town of Bridge or borough court, in the county where the port,
which was the owner of the seizure was made, which authority shall
forthwith order reasonable notice to be given General Statutes of 1902, punishing by fine to the person who is in possession of the and imprisonment, but without any forfeiture property seized, or to the owner thereof, if of boats, etc., injuries to inclosures marked known, of the time and place of trial; and and staked out according to law. Pub. Acts shall at the time and place appointed deter 1857, pp. 113, 114, c. 92; Pub. Acts 1878, P, mine whether such property was used con 275, c. 24, 8 6. Afterward acts were passed trary to law, and if found to have been so expressly extending such penalty of seizure used shall order it to be sold at such time and and sale of vessels to certain cases of takin such manner as said authority shall di- ing, raking, or injuring oysters planted in rect; and the avails thereof, after deducting private designated grounds, and to cases of all costs and charges which said authority injury to designated inclosures by willfully may allow, shall be paid half to the person depositing mud upon the grounds so inclosed. who made the seizure and half to the town Pub. Acts 1865, p. 61, c. 56; Pub. Acts 1877, where the offense was committed.
p. 199, c. 93. A right of appeal to the court of common The first act making dredging unlawful appleas or superior court is given to any party pears to have been passed in 1871. Its first aggrieved by such order. The unconstitution section prohibited the collecting of any shells ality of this section is urged, and especially or shell fish by means of dredges in parts of in so far as its provisions are intended to New Haven Harbor and its adjacent waters apply to such an act of dredging over a pri and of the navigable waters of East Haven, vate bed, as that shown by the evidence, up under a penalty of from $25 to $100 or imon the grounds that it authorizes an unrea prisonment; and its second section authorsonable seizure of one's “possessions” by per ized a seizure and sale similar to that de mitting them to be taken without a warrant scribed in said section 3241 of any vessel, by a person who is not an officer at a time etc., employed in dredging contrary to the long after the commission of the offense, and provisions of said first section. Pub. Acts permits the appropriation by the state of 1871, p. 676, c. 119. While that law was in the property of an innocent person, without force, an act was passed in 1874 and extendcompensation therefor, even when the offense ed in 1878, and now embodied in section 3246 committed has worked no injury either to of the General Statutes of 1902, punishing the public or to any individual. Certainly, by fine and imprisonment the willful taking before subjecting the property of the defend and carrying away of oysters lawfully plantant to such seizure and confiscation, it oughted upon any bed within the waters of this clearly to appear from the language of our state, but without imposing the penalty of statutes that the provisions of this section seizure and sale of any boat, etc., used in were intended to apply to the offense shown the commission of such offense. Pub. Acts to have been committed in the present case. 1874, p. 205, C. 42; Pub. Acts 1878, p. 275,
Although the question before us must be c. 24, § 5, and page 311, c. 85. These acts determined the law as it existed when the of 1871, 1874, and 1878 remained practically offense complained of was committed, and unchanged in the Revision of 1875, excepting which is found in the General Statutes of that in place of the words of the origi1902, some light may be thrown upon the nal act of 1871, "any vessel
used meaning of the section of those laws under
in dredging contrary to the proviconsideration by a review of some of the sions of the first section of this act,” we previous legislation upon the same subject. find in the Revision of 1875 the words, "any In 1848 a law was passed, the first section of boat or vessel illegally used in dredging.” which prohibited any person who had not Revision 1875, pp. 216, 217, c. 4, 8$ 16, 22, 23. been an actual inhabitant or resident of this And we also find in the same Revision (page state during the preceding six months from 218, c. 4, § 26) a provision forbidding any pertaking, raking, or gathering any oysters in son from taking, ra ng or gathering any oysany waters of this state, and imposed a for ters in any of the waters of this state on feiture of $20 for a violation of such law, and board of any boat unless he or his employer the second section of which authorized a has been a resident or actual inhabitant of seizure and sale, similar to that described in the state during the preceding six months, said section 3241, of any vessel, etc.; used in but imposing no punishment or penalty whattaking or raking oysters contrary to said pro ever for such an offense; but by an act passvisions of that act. Pub. Acts 1848, p. 56, C. ed in 1876 any boat, etc., so used was made 66. In the Revision of 1849, in the same subject to seizure and sale, in the manner chapter with this act of 1848, we find a law now provided in section 3241. Pub. Acts imposing no other penalty than a forfeiture 1876, p. 104, c. 39. From 1882 to 1895 the of $7, and in certain cases of $25, and im- | following acts were passed, in each of which prisonment in the workhouse for entering any boat, etc., used in violation of the provi. upon and gathering oysters from any private sions of the act was expressly made liable inclosure staked out as provided by law in to seizure and sale by proceedings similar any of the navigable waters of the state. Re to those described in section 3241 of the Genvision of 1819, pp. 399–401, c. 2. In 1855 an eral Statutes of 1902: In 1882 and 1883, acts act was passed, which was extended in 1878, now embodied in section 3242 of the Genand is now embodied in section 3247 of the eral Statutes of 1902, forbidding the deposit.