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Michael's Appeal from County Commissioners.

of this period. Mr. Michael does not deny that he knew liquors were sold in the bar-room of the Commercial House during this period, and it is a fact that he did know of this. They were sold in large quantities in this bar-room; numbers of persons congregated there, drunken men were seen from time to time coming out of the bar-room, and the location was the center of much disorder. The bar-room was connected with the rest of the house, and no attempt was made to shut it off by itself.

During all of this time Michael lived in and was the proprietor of the hotel, and during this period various men were convicted of selling liquor contrary to law in this bar-room; searches for liquor were made by the officers of the law, and liquors found in and about this bar-room were confiscated. On two occasions Mr. Michael was present while the officers of the law were engaged in their search.

Upon this evidence alone a trier could not help but find that Michael knew of the continued violation of the liquor law on his premises. He was the owner of the building. These various occupants of the bar-room were, it is claimed, although there is no evidence and no offer of evidence of the fact, tenants of Mr. Michael. Mr. Michael never made the least effort to prevent their use of his premises for the purpose of violating the law. So that the case of the applicant presented in its most favorable light is this: The owner of a building used as a hotel leases the bar-room of the hotel to tenants who openly, wantonly and continuously use the premises for the purpose of violating the liquor law; this is done with the knowledge of the owner of the building who himself occupies all the rest of the building for a hotel, and without his protest. Is this owner a suitable man to have a license granted him? Is this bar-room where the law has been impudently violated for an entire year a suitable place within the meaning of the law?

No owner of a building who permits, with no effort to check it, the law to be violated in his building, by his tenants in the conduct of a liquor business, is a suitable person in the eye of the law to conduct the same business in the

Michael's Appeal from County Commissioners.

same place under the license of the law, immediately succeeding such use of his premises. The law to-day legitimizes the sale of liquor in Bristol under a license. Around the sale it imposes conditions, prescribes regulations and inflicts penalties. The man who is himself regardless of the law, who suffers its violations upon his own property and under his own eye with no attempt to check it, cannot be expected to obey the law if he be given the privilege of conducting the same business which he has just suffered to be illegally conducted on his property.

The unsuitableness of the place depends upon the surroundings, the locality, the danger to public order, the character of the building itself and other circumstances.

Here, in the case before us, is a building in which the law has been long and seriously violated, where men have been taught the law can be violated with impunity; its character is that of a place where the law can be violated. I am called upon to judge whether that building is a suitable place for the sale of liquor. Its character is bad. I could not take the good character or good intentions of a proposed licensee to sell liquor therein, as a bill of health for the building. The building has a character that has become attached to it. It still bears the repute which its lawbreaking occupants gave it. The repute it bears will attract to it the disorderly, the lawbreaker, and the dangers the law seeks to minimize in the traffic of liquor will be increased if that traffic be permitted, by reason of such character.

A building which has become the abiding place of either lawbreakers or of crime cannot be a suitable place in which to sell liquors. A building which has been used for a long period in which to violate law is not a suitable place in which to sell liquors.

*

Michael rested his case solely upon the opinion of some of his townsmen that he was a suitable person, and upon his position in the community as a large property owner and an old hotel proprietor. I have taken these facts into consideration and given them all the weight they deserve, but

Greenwood et al. v. Town of Westport.

I cannot ignore, and I have no desire to ignore, that which
is the indisputable proof in this case-Michael ran his bar-
room contrary to law in the no license year, therefore he is
not a suitable person to run his bar-room under the law this
license year.
*** And the place so run in violation of
law, has had its unlawful use so stamped upon it as to char-
acterize it as an unsuitable place in the eye of the law.

Let judgment be entered denying the applicant his license, and for the remonstrants to recover of him their costs to be taxed as by law allowed parties in civil actions.

63 587

SYLVESTER GREENWOOD AND OTHERS vs. THE TOWN OF

WESTPORT.

The defendant voluntarily undertook to operate a drawbridge constituting part of a public highway in the town of Westport over a navigable river, and employed a draw tender for that purpose. The plaintiffs' vessel was unreasonably delayed by the negligent failure of the defendant to seasonably open the draw, in consequence of which the vessel was carried away by the tide and injured. In a libel in personam brought against the town in the admiralty court it was held:

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1. That it was immaterial that the warning for the town meeting at which the draw tender was first appointed contained no notice of such intended action, since the subsequent action of the town in paying the draw tender and of the selectmen in reappointing him constituted a ratification by the town; and moreover, because the negligence complained of occurred while the draw was in the actual charge of the first selectman and agent of the town.

2. That the town having assumed the duty of operating the draw could not now be permitted to claim that its action was unauthorized or ultra vires, but was liable for the consequences of its negligence, although no statute of the state imposed such liability.

3. That such claim could only be invoked where the acts done or contracts made were necessarily wholly outside of the corporate powers of the town; and that the liability in actions ex delicto rests upon an entirely different principle.

4. That the voluntary action of the town in operating the draw, for the protection of the bridge itself, or for the convenience of navigators and the benefit of the wharves above the bridge, or for the convenience and safety of travelers on the highway, was not, in any sense, a public, governmental act.

5. That the rule that an action will not lie against a quasi corporation for neglect of a public duty unless the right of action is conferred by stat

69 649

Greenwood et al. v. Town of Westport.

ute, is of limited application; and in the case of towns applies only to the neglect or omission of a town to perform such duties as are imposed on all towns without their corporate assent, and exclusively for public purposes.

6. That Federal Courts in administering the rules of the common law within a state, are bound by the local policy of such state as to the extent of the powers and liabilities of its municipal corporations, whenever such powers and liabilities have been determined by legislative authority or the settled decisions of its highest courts.

7. That a court of admiralty had power to administer relief in the present case according to its own rules of procedure.

ACTION of libel in personam against the town of Westport; brought to the United States District Court for the District of Connecticut. The case is the same reported in Conn. Reports, Vol. 62, p. 575.

S. Park, for the libelants.

C. Thompson, for the defendant.

TOWNSEND, District Judge. This is a libel in personam against the town of Westport in the district of Connecticut, to recover damages to the steam barge Hebe, alleged to have been caused by the negligence of said town in not seasonably opening a drawbridge across Westport river, by reason whereof said barge was delayed until she was carried away by the ebb tide and struck the bottom, and sank. The defenses are, denial of negligence and denial of liability, even if there was negligence.

The question of jurisdiction has already been presented upon exceptions, and decided adversely to the defendant. 53 Fed. Rep., 824.

The defendant town is located on the banks of Westport river, which is navigable for steam barges, such as the Hebe, only at or about high tide. In said town, and some 250 to 300 feet above said drawbridge, are certain stores and wharves. At a short distance beyond this point the river becomes a mere shallow stream, and is not navigable. A drawbridge was originally built across said river at the point where the present bridge is located, under a charter granted in 1796 to a private corporation. Said charter provided that the company

Greenwood et al. v. Town of Westport.

should make a draw in said bridge "sufficient to accommodate all the navigation which may pass up and down said river," but nothing was said about operating said draw. In 1857, said corporation abandoned said bridge, and the defendant town then took charge of, and has ever since maintained it. No obligation was ever imposed upon any one to operate said draw, and, down to 1880, the persons in charge of vessels passing through said bridge opened and shut said draw. In 1880, complaint was made that persons passing through said draw did not fasten it properly, and a draw tender was appointed at the town meeting to take care of the draw. After that time a draw tender was appointed at every annual town meeting, until recently, when the selectmen took charge of the matter, and employed the draw tender. Such draw tender, with the aid of the selectmen and others, has opened the draw since 1880, and has been paid for such services by the town.

It does not appear that any notice of the proposed appointment of such draw tender was inserted in the warning of such meetings, but this does not seem to be material, for even if such notice might originally have been necessary, the action of the town and of its selectmen since 1880, would constitute a ratification of such appointment. Town of Rocky Hill v. Hollister, 59 Conn., 434. A further reason why this point is not material is to be found in the fact that the alleged omission to act, or acts of misfeasance, occurred on this occasion when the draw was in the charge of the first selectman and agent of the town.

The town of Westport has never been required by any legislative act to provide an attendant to operate said draw. In other cases, where such operation is required, a special provision to that effect has been inserted in the charter for such bridge.

The question now presented is, whether the town of Westport, being under a statutory obligation to maintain this highway and bridge over a navigable stream, but under no obligation to operate said drawbridge, having voluntarily

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