hand be relaxed in favor of clubs, or where liquor is served with a meal in a hotel or a restaurant.6 3. The place of consumption, the license fee being generally lower for sales of liquor not to be drank on the premises where they are sold. The regulations relate to: 1. The place of sale, the location being made dependent upon the consent of adjoining owners, or being forbidden in the neighborhood of institutions serving higher interests, or being altogether forbidden in dwelling houses; elaborate provision being also made under some laws regarding the arrangement of the place.10 2. The time of sale, the restrictions relating chiefly to closing hours, and to sales on Sundays and election days. 3. The persons to whom the liquor is sold, restrictions being found in probably all states with regard to sales to minors and to habitual drunkards,11 and sometimes also to paupers.12 4. Incidental attractions, as music,13 or women;14 and 5. Incidental disabilities and burdens, so by refusing a cause of action to recover the purchase price of liquor sold,15 or by creating special liabilities.16 In the policy of prohibition we distinguish absolute prohibition from public monopoly. Either policy may be "state wide" or local. In the matter of individual consumption the laws deal specially with intoxication and with habitual intemperance. As other subjects of the police power, so the control of intoxicating liquors is complicated by questions arising under the federal constitution: the rights of federal citizenship, the right of property, and the freedom of commerce. REGULATION OF THE LIQUOR TRAFFIC. §§ 206-212. § 206. Right to sell without license or issue of license as a matter of right-Exclusion of administrative discretion.17. 5 See § 456 infra. 6 New York Act, § 31; Mass. Rev. L. ch. 100, § 17; Commw. v. Regan, 182 Mass. 22, 64 N. E. 407. 7 Mass. Rev. L. ch. 100 § 15; New York Act, § 17, No. 8. 8 New York Act, § 24. 9 Mass. Rev. L. ch. 100, §§ 36, 37. 10 See § 52 supra. 11 See § 226 infra. 12 Mass. Rev. L. ch. 100, § 17. 13 See § 250 infra. 14 See § 703 infra. 15 New York Act, § 32. 16 Civil Damage Acts, see § 626 infra. 17 See, also, § 652. The essential feature of this system of regulation is that it excludes all administrative discretion, and at the same time recognises it as a principle that a person may engage in the traffic in intoxicating liquors. It does not exclude restrictions upon the method of carrying on the business, nor even restrictions by reason of personal disqualification, provided that restrictions are clearly defined by law and operate equally without individual discrimination. It is not inconsistent with this system to require a license, this license being in the nature of a certificate of compliance with all the conditions prescribed by law, and being obtainable as a matter of right upon proof of such compliance. This system of granting licenses as a matter of right is the one embodied in the Liquor Tax Law of New York.18 The act does not speak of a license, but assesses a tax upon the business of trafficking in liquors, upon payment of which a liquor tax certificate is issued; the certificate, however, is not issued to every one paying the tax, but is given only to applicants giving bonds, showing certain consents, and making the statements required by law.19 Specified classes of persons may not be granted the certificate ;20 upon violation of the law the certificate may be forfeited and no other certificate may be issued for a specified period;21 and the trafficking without a certificate may be enjoined and is punishable.22 In all essential respects the certificate is therefore a license.23 By making the license fee or tax sufficiently high, even the system of granting licenses as a matter of right may be used as a means of restricting the liquor traffic. The system of licensing which excludes discretion appears to be regarded with growing favor; it was adopted in Germany by the Trade Code of 1869,24 and for France by a law of July 17, 1880. § 207. Right to sell subject to statutory disqualifications and conditions.-The recognition of a general right to engage in the liquor traffic as distinguished from a right dependent upon the exercise of administrative discretion in each case, is not inconsistent with either of the following safeguards: 18 Act March 23, 1896, Gen. Laws, ch. 29. 19 Sec. 17, 18. 20 Section 23. 21 Sec. 34. 22 Sec. 29, 34. 23 See § 37, supra. 1. The exclusion of specified classes of persons; so under the law of New York persons convicted of felony, minors, aliens and non-residents, foreign corporations, persons who under former laws had their licenses revoked and persons convicted of à violation of the present law (these are disqualified for a period of five years).25 Such exclusion operates without individual discrimination. 2. The requirement of a bond with sureties for the compliance with statutory regulations, -a very common feature of liquor legislation. 3. The requirement of the consent of the landlord of the premises in which the traffic is to be carried on: this is a provision in the interest of private rights only, and does not give the person whose consent is required a licensing power.26 To require on the other hand the consent of all or of the majority of the inhabitants of a specified district, is to make the liberty to engage in the business practically dependent upon a discretionary license, the power to license being delegated to the people instead of being vested in administrative authorities. If the consent of a majority can. overcome the dissent of a minority, the consent becomes a public function and trust, and may therefore not be made the subject-matter of a bargain between the applicant and the required number of owners.27 § 208. Requirement of a license to be issued as a matter of judicial discretion.28-This system, which is not inconsistent with absolute exclusion for stated disqualifications, is the one which was adopted in England by the first licensing act, of 5 and 6 Edward VI, chapter 25, and is embodied in the present English legislation, which provides that it shall be lawful for the justices of the peace assembled at the general annual licensing meeting for the county to grant licenses for the sale of liquor "to such persons as they, the said justices, shall in the execution of the powers herein contained and in the exercise of their discretion, deem fit and proper."29 The 25 Sec. 23 of Act. 26 See, however, State v. Sinks, 42 Ohio St. 345. 27 Doane v. Chicago City R. Co., 160 Ill. 22, 45 N. E. 507. 28 See, also, § 651-655. 29 9 George IV, ch. 61, Sec. 1, 1828. judicial character of the discretion is secured both by the requirement of hearing applications, so that where an application was refused without hearing in pursuance of a general resolution to grant no more licenses, mandamus would lie to hear, although not to grant,30 and by provision for appeal from a refusal to grant to the Quarter Sessions.31 This system of discretionary licenses has been common in this country from the colonial times, and is even now found in the majority of states. The statutes say that "it shall be lawful for" the licensing authorities to grant, or that they "may" grant licenses often adding "to suitable persons," or "if they think the applicant a fit person," or "if deemed expedient" or like words, or that they may refuse the license if they deem the applicant unfit. Words of discretion are also used: that they may grant or reject, or approve or disapprove, "at their discretion, as they think proper," etc. 9966 $209. Judicial control.-It must be regarded as firmly established that this discretion is judicial in its character, and does not mean arbitrary power.32 Statutes often provide for a hearing in express terms, and in a number of states for the hearing of objections and remonstrances as well as for a hearing on behalf of the application. Courts have repeatedly refused to review the discretion of the licensing authority, but this was nearly always done on the theory that the discretion had been honestly exercised. Mandamus will, therefore, not lie to dictate the exercise of the discretion one way or another, unless it appears clearly that there is no ground for refusal,33 or that the ground of refusal is one not recognised by statute.34 In Virginia it had been held that the discretion of the licensing authority could not be reviewed though it was admitted that it could not be an arbitrary discretion;35 thereupon an appeal was given by statute to the circuit court.36 Such statutory appeals are found in other states, and the appellate court then 30 Reg. v. Walsall Justices 3 C. L. stood to construe the municipal ordiR. 100. nance as excluding discretion. 31 Sec. 27 of Act. 32 Schlaudecker v. Marshall, 72 Pa. St. 200; United States ex rel. Roop v. Douglass, 19 D. C. 99. 33 Zanone v. Mound City, 103 Ill. 552. This case may also be under 34 Pollard's Appeal, 127 Pa. St. 507. 35 Ex parte Yeager, 11 Gratt. 655. 36 Leighton v. Maury, 76 Va. 865; Allstock v. Page, 77 Va. 386. exercises its own discretion in the matter.37 Where there is no such statutory appeal the relation of the courts to the discretion of the licensing authorities is based upon the principle that there must be a hearing, the refusal must be for a legal reason, and where these two points appear the court will not assume to discuss the correctness of the result reached.38 In Massachusetts it is expressly provided that nothing in the act is to be construed as compelling the granting of licenses.39 $ 210. Considerations guiding discretion.-The points to be taken into consideration in exercising discretion are mainly three: the suitability of the person, the suitability of the place, and the number of places in relation to the number of people and their reasonable accommodation. With regard to place there are numerous specific restraining provisions in the statutes, which however are not necessarily exhaustive. With regard to number of places, it has been held in England that an absolute limitation is inconsistent with the right of each individual to the exercise of judicial discretion in his particular case;40 but in New York (under the law before 1896), and Pennsylvania, excessive number is a good ground for refusal.41 The Pennsylvania (Brooks) law of 1887 makes the public need a controlling factor; the court is to refuse the license whenever, in its opinion, it is not necessary for the accommodation of the public and entertainment of the traveler. The suitability of the person is an element of consideration. wherever there is any discretion, and in theory it seems plausible and perhaps indispensable to insist upon it. Yet the abuses of favoritism, etc., inseparable from it, deprive even this form of discretion of most of its value. The requirement of a certificate of character to be given by a specified number of reputable citizens is of even more doubtful utility, and was abandoned in England in 1828 as vexatious and unreliable. The Supreme Court of Michigan has gone so far as to declare that under the constitution all disqualifications debarring from the right to engage in a lawful business must be specific, and 37 Hopson's Appeal, 65 Conn. 140. 38 Gross' License, 161 Pa. St. 344. 39 Rev. Laws, ch. 100, § 16. 40 Reg. v. Walsall Justices, 3 C. L. R. 100. 41 People ex rel. Hoy v. Mills, 91 Hun 144; Re Raudenbusch, 120 Pa. St. 328. |