VAN NORTWICK v. BENNETT.

(Supreme Court of New Jersey, 1898. 62 N. J. Law, 151, 40 Atl. 689.)

On certiorari to review the granting of a license to sell ale, etc., by the Monmouth pleas.

VAN SYCKEL, J. The defendant, Bennett, applied for a license to sell ale, strong beer, etc., under the act approved April 4, 1872 (Gen. St. p. 1797, pl. 60).

This application, as recommended by the ten freeholders [as required by the said act, and in due form], was for a license to sell in the place occupied by the petitioner, being the northwesterly side of the building erected on the southeasterly side of Shark river, between the county bridge and the railroad bridge.

When the application was presented to the Monmouth pleas there was a remonstrance against granting it. Thereupon the application was amended by restrictive words, defining the portion of the premises in which the license was to be used, and the following clause was inserted in the affidavit thereto: "This application is made with the express understanding that no open bar is to be maintained, and that the purpose of this license is to serve guests at table with meals.”

The affidavit was not again taken after this alteration, nor did the freeholders who recommended the application sign the recommendation after the petition was altered.

The court granted a license to Bennett "with the express condition that no open bar was to be maintained, and that the purpose of the license was to serve guests at table with meals."

The act of 1872 prescribes the form of the license which the court may grant, which is "to sell malt liquors in the place which the applicant keeps." A license so granted authorizes the licensee to keep an open bar. From the fact that the court annexed to the license granted a condition that he should not keep an open bar, and should sell only with meals served, we must infer that in the exercise of its discretion the court decided that a license such as the statute authorizes should not be granted. The license granted is not authorized by the act of 1872, or by any other statute, and was not recommended by ten freeholders. The common pleas, therefore, had no jurisdiction or authority to grant such a license. A constituent essential to the jurisdiction of the court was absent, and that makes its action subject to review in this court, under the case of Dufford v. Nolan, 46 N. J. Law, 87. The suggestion that the restriction imposed will be in the interest of good order cannot be considered. Licenses can be granted only in virtue of the statute. The Legislature alone prescribes the conditions and terms, and the common pleas is without power to depart from these provisions, and to say that, although the license provided by law ought not to be granted, it will issue some other license not authorized

by the act. The action of the court has no basis in legislation, and is therefore invalid.

The license certified is vacated and set aside.20

SECTION 6.-SAME-LICENSING POWER AND POWER TO REVOKE LICENSES

CITY OF LOWELL v. ARCHAMBAULT.

(Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 70, 75 N. E. 65.) Appeal from Superior Court, Middlesex County.

Bill in equity by the City of Lowell against one Archambault. From a decree for plaintiff, defendant appeals. Reversed.

BRALEY, J. This is a bill in equity, brought under Rev. Laws, c. 102, § 71, to enjoin the defendant from occupying and using a stable, in violation of the provisions of section 69 of the same chapter. In the superior court the case was submitted on agreed facts, and after a decree had been entered in favor of the plaintiff, it comes before us on the defendant's appeal.

It appears that the defendant, who is engaged in the business of an undertaker, desiring to erect on his land a stable to be used in

20 Compare Chester v. Wabash, etc., Co., 182 Ill. 382, 55 N. E. 524 (1899), consent with a time limit held valid. As to the validity of consents given for a consideration, see Maguire v. Smock, 42 Ind. 1, 13 Am. Rep. 353 (1873); Howard v. First Indep. Church, 18 Md. 451 (1862); Doane v. Chicago City R. Co., 160 Ill. 22, 45 N. E. 507, 35 L. R. A. 588 (1895); Hamilton Traction Co. v. Parish, 67 Ohio St. 181, 65 N. E. 1011, 60 L. R. A. 531 (1902).

See Francis v. Francis, 203 U. S. 233, 242, 27 Sup. Ct. 129, 132, 51 L. Ed. 165 (1906): "It follows that the words in the patent of 1827, 'but never to be conveyed by them or their heirs, without the consent and permission of the President of the United States,' were ineffectual as a restriction upon the power of alienation. The President had no authority, in virtue of his office, to impose any such restriction; certainly not without the authority of an act of Congress, and no such act was ever passed."

See Sidney and Beatrice Webb, English Local Government, I, "The Parish and the County," p. 541: "The whole sphere of licensing afforded a wide opportunity for virtual legislation. We have sufficiently described elsewhere the extent to which the justices, at first in pairs and afterward in Brewster sessions, exercised their plain legal right to impose conditions on alehouse keepers seeking licenses, and to bind them over, by 'articles' attached to the statutory recognizances, to close at certain hours or on certain days, to follow this or that line of conduct, and to abstain from particular lawful acts of which these particular justices chose to disapprove."

As to the power of municipal corporations to annex conditions to their consent to the laying of railroad tracks or to the placing of other public utility appurtenances in the public streets, see Byrne v. Chicago General R. Co., 169 Ill. 75, 83-85, 48 N. E. 703 (1897); Allegheny City v. Millville, etc., Ry. Co., 159 Pa. 411, 28 Atl. 202 (1893), in favor of the power; Matter of King County Elevated R. Co., 105 N. Y. 97, 114, 13 N. E. 18 (1887) quære; State ex rel. v. City of Sheboygan, 111 Wis. 23, 86 N. W. 657 (1901), and Wisconsin Telephone Co. v. Milwaukee, 126 Wis. 1, 104 N. W. 1009, 1 L. R. A. (N. S.) 581, 110 Am. St. Rep. 886 (1905), against the power.

connection therewith, applied to the board of health for a license to permit him to occupy and use the building when completed for the stabling of eight horses. This petition was granted, and a license duly issued to him, permitting the exercise of this privilege. Upon receiving it, he at once had plans prepared, and began the erection of a stable on a site from which he had at a pecuniary loss removed another building. After the work had been begun, but before its completion, the board of health, acting on the petition of residents in the immediate vicinity, rescinded their former vote and canceled the license. Since the completion of the building the defendant has used it for the keeping of two horses, claiming this right under the license, which he contends never has been legally annulled. If the revocation was invalid, such use was not in violation of the statutory provision on which the plaintiff relies, and the bill cannot be maintained. The license granted under the police power of the commonwealth, as administered through the agency of the board of health, did not constitute a contract between him and the city, or confer upon him any vested right of property. Neither did its abrogation, if lawful, deprive him of any immunity or privilege conferred upon him by our Constitution. Calder v. Kurby, 5 Gray, 597; Newton v. Joyce, 166 Mass. 83, 44 N. E. 116, 55 Am. St. Rep. 385; Young v. Blaisdell, 138 Mass. 344.

The Statutes of 1895 (page 219, c. 213), now Rev. Laws, c. 102, §§ 69, 71, under the authority of which the board acted and the license was issued, contained no provisions for its recall when once granted. It evidently was the purpose of section 1 of the original act that the license itself should specify the extent of the right conferred, by setting out the conditions under which the building could be built and used; for by section 2 the board may make regulations respecting the occupation and use of stables in existence at the date of its passage, while the last section provided a penalty for the violation of the act itself, or of .any order or regulation made pursuant to its requirements. Whether a stable was in existence and its use was to be continued, or permission was to be given to erect a stable and then use it, the right in each instance was subject to such reasonable regulations as might be made by the board of health. It undoubtedly was presumed that the board would make proper inquiries before judicially determining whether a license should or should not be refused, and, if granted, to prescribe by its terms how far the privilege might be exercised. In any instance, if the granting of a license would be detrimental to the public health, or contrary to regulations already established, then it would not be issued.

If the statute had given to the boards of health of cities a general authority similar to that conferred by Pub. St. 1882, c. 80, § 10,21

21 This section provides that boards of health may exercise all the powers vested in, and shall perform all the duties prescribed to, city councils or mayors and aldermen as boards of health under the statutes and ordinances in force in their respective cities on May 17, 1877.

it might be that they lawfully could make the violation of their regulations a sufficient ground for revoking the privilege, and could issue it upon such a condition. Young v. Blaisdell, ubi supra; Grand Rapids v. Braudy, 105 Mich. 670, 677, 678, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472.22 At least it could be said that the licensee then would take it subject to this reservation, and, having agreed to its terms, no injustice would be done by a subsequent cancellation. Generally, under statutes regulating the conduct of certain kinds of employment or of business which require the protection of a license. before they can be lawfully prosecuted, the penalty of forfeiture is dealt with either by conferring express authority to revoke for violations upon the licensing board or some other tribunal, or else a general power is delegated, under which such a clause may be inserted in the license itself. Rev. Laws, c. 100, §§ 15, 47, 89; chapter 102, §§ 9, 28, 29, 33, 58, 72; Grand Rapids v. Braudy, ubi supra.

Upon application for permission to erect a stable, which, in the absence of a restricting statute, would be a legitimate improvement in the enjoyment of his property, the applicant is entitled to know the full measure of immunity that can be granted to him before making the expenditure of money required to carry out his purpose. A resort to the general laws relating to the subject, or to ordinances or regulations made pursuant to them, should furnish him with the required. information. When this has been obtained, he has a right to infer that he can safely act, with the assurance that, so long as he complies with the requirements under which it is proposed to grant the privilege, he has a constitutional claim to protection, until the Legislature further restricts or entirely abolishes the right bestowed. Commonwealth v. Brennan, 103 Mass. 70; Commonwealth v. Kinsley, 133 Mass. 578, 579; Hirn v. State, 1 Ohio St. 20, 21; Schwuchow v. Chicago, 68 Ill. 444; Lantz v. Hightstown, 46 N. J. Law, 102, 107; Grand Rapids v. Braudy, ubi supra.

Independently of this statute, while the board of health, under Pub. St. 1882, c. 80, §§ 8, 12, after a hearing and on proper evidence, might have adjudged the defendant's building, when erected and occupied. as a stable, detrimental to the public health, and therefore a nuisance, it had no jurisdiction to issue a license to him permitting and regu

22 Schwuchow v. City of Chicago, 68 Ill. 444, 449 (1873): "When the Legislature granted power to suppress groceries, they conferred power on the city which they might exercise even to that extent. The Legislature, then, having conferred such power, it was for the common council to determine whether they would wholly suppress the sale of intoxicating liquors, or grant the privilege on such terms and conditions as they might choose. And the power was ample, under this grant, to impose as a condition that, when a license is granted, it should be liable to revocation on the violation of the ordinances regulating the traffic, or, having absolute control over the whole subject of granting licenses, they may impose any other condition calculated to protect the community, preserve order, and to suppress vice." See Grand Rapids v. Braudy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472 (1895).

See, also, Inhabitants of Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860, (1890).

lating such use except as authorized. Commonwealth v. Stodder, 2 Cush. 562, 48 Am. Dec. 679; Cambridge v. Munroe, 126 Mass. 496, 502; Commonwealth v. Plaisted, 148 Mass. 375, 383, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. It is the Legislature alone that primarily can impose, or give authority to impose, conditions and exact forfeitures (Lantz v. Hightstown, ubi supra; Dillon, Mun. Corp. [3d Ed.] § 345, note 4, and cases cited); and the authority of the board as a governmental agent is commensurate with the provisions of the statute clothing it with this power (Abbott v. Frost, 185 Mass. 398, 400, 70 N. E. 478).

A licensee should not be subjected to the uncertainties that constantly would arise if unauthorized limitations, of which he can have no knowledge, are subsequently and without notice to be read into his license at the pleasure of the licensing board. Besides, all reasonable police regulations, enacted for the preservation of the public health or morality, where a penalty is provided for their violation, while they may limit or prevent the use or enjoyment of property except under certain restrictions, and are constitutional, create statutory misdemeanors, which are not to be extended by implication. Commonwealth v. Beck, 187 Mass. 15, 72 N. E. 357.

The license issued to the defendant contained no limit of time for its exercise, nor was it made subject to an existing regulation which so provided. It stated that permission was given to keep eight horses, and purported to and did set out in full the statute under which it was granted, but contained no further recitals. Thus neither by its terms nor by the statute itself was it made revocable, nor does it appear that any regulations had been adopted or promulgated the violation of which would cause a forfeiture. Originally it may have been improvidently issued, but upon being informed that citizens in the vicinity of the defendant's premises objected to the erection of the building for its proposed use, it was not within the power of the board of health, even after a hearing, in the absence of authority conferred upon them by legislative sanction, to deprive him of the privilege they had unreservedly granted. Commonwealth v. Moylan, 119 Mass. 109, 111; Commonwealth v. Kinsley, ubi supra; Mayor v. Third Avenue Railroad, 33 N. Y. 42; Shuman v. Fort Wayne, 127 Ind. 109, 26 N. E. 560, 11 L. R. A. 378; Hirn v. State, ubi supra; Grand Rapids v. Braudy, ubi supra; Lantz v. Hightstown, ubi supra.

In the opinion of a majority of the court, the decree must be reversed, and a decree entered dismissing the bill, with costs. So ordered. 23

23 See Lantz v. Hightstown, 46 N. J. Law, 102, 108 (1884): "I can find no instance in the practice of boards of excise or other licensing bodies in which the power of revocation has been exerted except under the provisions of a statute." See, as to cancellation of license illegally obtained, State ex rel. Schaefer v. Schroff, 123 Wis. 98, 100 N. W. 1030, post, p. 490 (1904).

See, also, Thompson v. Gibbs, 97 Tenn. 489, 37 S. W. 277, 34 L. R. A. 548 (1896).