Attorney General's Opinion
Attorney General, Richard Blumenthal
December 4, 1991
William V. Sullivan, Chairman
Department of Liquor Control
165 Capitol Avenue
Hartford, CT 06106
Dear Mr. Sullivan:
This is in response to your request for an opinion on the impact of the repeal of Conn. Gen. Stat. § 30-42, which directed the refund of liquor permit fees under certain circumstances, on pending requests for such liquor permits rebates. The statute was repealed, effective on passage, in 1991 Conn. Pub. Acts No. 91-14 Sec. 28 (June Session). It was signed by the Governor on September 19, 1991. The question you have asked is which, if any, of the pending requests should be honored.
As of the date of your request, some 294 applications were pending before the department with claimed rebates totaling approximately $142,109. See Memo from Tom Ort dated October 10, 1991; Attachment A. For the following reasons, we believe that rebates should be allowed and paid on any allowable claims which came into existence prior to the signing of the repeal as long as the applications for such rebates were filed within the time limits prescribed by the former Conn. Gen. Stat. §§ 30-42.
By way of background, the statute on rebates of liquor permit fees generally allowed the Comptroller to pay refunds on requests made "within the period for which the permit was allowed", that is, before the relevant permit year expired. It also provided for the subtraction of taxes due the state, and a processing charge, and it excluded refunds if the ultimate amount involved was less than $100. According to Section 30-42, rebates were allowed "upon the death of a permittee . .. the voluntary surrender of a permit, ... whenever a permit is issued but not used or recorded with the clerk of the town in which the permit premises are located" or "[w]henever, by reason of any catastrophe, act of God or serious natural disaster, a permit business is discontinued or whenever the site of any permit premises is taken in the exercise of the power of eminent domain...." We understand that the pending applications concern all of these categories, and that some were filed before September 19 and some after that date.
The general rule of statutory construction provides that, absent a savings clause or other clear expression of intention, all rights which are of purely statutory derivation and unknown at common law are eliminated by the repeal of the statute which granted them, irrespective of the time of their accrual. 1A Sutherland Statutory Construction (4th Ed.) § 23.33; accord 24 Conn. Op. Atty. Gen. 28 (1945). No savings clause is applicable to the present situation and the legislative history of 1991 Conn. Pub. Acts. No. 91-14 reveals no intent to save such claims.1 This rule, however, has been tempered in Connecticut to the extent that it is not applied to impair rights that have vested while the statute was in force. Massa v. Nastri, 125 Conn. 144, 147 (1939). Id. In the problem presented, the licensees whose claims for a rebate came into existence prior to the repeal of the statute have a vested right to the rebates and are entitled to pursue those claims.
- Vested rights include title, legal or equitable, "to the present or future enforcement of a demand ... although it must be something more than a mere expectation as may be based upon an anticipated continuance of the present general laws." Id. (citations omitted). The right must be absolute, complete, and unconditional; independent of a contingency. 23 Conn. Op. Atty. Gen. 376 (1944); see Hagerty v. Administrator, 137 Conn. 129, 133 (1950). Under Section 30-42 permittees became unconditionally entitled to a rebate upon the occurrence of one of the enumerated time periods, neither the department of liquor control not the Comptroller had any discretion but to provide the rebates.2 Therefore, those licensees whose claims for a rebate came into existence prior to the repeal of the statute are entitled to pursue those claims as a vested right. See e.g. Asiatic Petroleum Co. v. Collector, 297 U.S. 666, 671, 56 S.Ct. 651, 80 L.Ed. 967 (1936); Parsippany Hills Assoc. v. Rent Leveling Board, 194 N.J. Super. 34, 476 A.2d 271 (1984), cert. denied, 97 N.J. 643, 483 A.2d 169 (1984); but see People v. Lindheimer, 371 Ill. 367, 21 N.E. 2d 318 (1939) app. dis., 308 U.S. 505 (1939).
Accordingly, if the right to the claim came into existence prior to the signing of Public Act 91-14, that is if the death, surrender, lack of use, or discontinuance due to catastrophe or taking occurred prior to signing, then the rebate should be processed and paid, even if the application was made after September 19, 1991. Of course, all qualifications under the old statute would apply and any disqualification would result in the denial of the refund. On the other hand, if the right came into existence after the signing of the Act, then any such application should be denied for lack of statutory authority due to repeal.
Very truly yours,
Assistant Attorney General
1 Public Act 91-14 does not contain a savings clause no do other statutes provide one: Conn. Gen. Stat. § 1-1(t) is not relevant on its face; Conn. Gen. Stat. §§ 1-1(u) and 55-3 are mere codifications of the rules of construction respecting retrospective legislation. See Lavieri v. Ulysses, 149 Conn. 396, 402 (1962); Schieffellin v. Dept. of Liquor Control, 194 Conn. 165, 174 (1984). The legislative debates are silent.
2 According to Section 30-42, an application for a rebate because of the death of a permittee, the voluntary surrender of a permit or because of a catastrophe or taking by eminent domain must be made "within the period for which such permit was issued." An application for a rebate because a permit was not used or recorded with the town clerk must be made "within sixty days of issuance of the permit."