Com. v. Lavery

• Decision Date: 06 April 1905
• Citation: 188 Mass. 13,73 N.E. 884
• Parties: COMMONWEALTH v. LAVERY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 13

73 N.E. 884

COMMONWEALTH v. LAVERY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1905

COUNSEL

Henry S. Dewey, for exceptant.

Michael J. Sughrue, for the Commonwealth.

OPINION

BRALEY, J.

This is a complaint under Rev. Laws, c. 102, § 1, charging the defendant with assuming to be a common victualer without first obtaining a license as required by other provisions of this chapter. At the trial in the superior court the jury returned a verdict of guilty, and the case is before us on his exceptions to the refusal of the court to rule as requested and to the instructions given to the jury. The lodging and entertainment of strangers and travelers, for gain, or the keeping of a place where they may purchase food are carefully regulated by statute, which makes it unlawful for any one to engage in these employments without first obtaining a license. In any case the licensing board is given discretionary power to grant or refuse an application made for this purpose, and the requirements that the license shall specify the place by a sufficient description, that the premises shall be provided with suitable facilities, and that, when the licensee ceases to exercise his employment, or fails to maintain his establishment properly, his license shall be revoked, clearly contemplate a careful selection of the person to whom such a privilege is granted. It thus becomes personal in its nature, and is not capable of being transferred by the licensee, nor does the license furnish immunity from prosecution to another who seeks to avail himself of its benefit as if it had been originally granted to him. Rev. Laws, c. 102, §§ 1-3, 5, 6, 9. The provision found in section 1 is a re-enactment of the law as it appears in Gen. St. 1860, c. 88, § 1, and Pub. St. 1882, c. 102, § 1 with the exception that the word 'assume' is substituted for 'presume,' used in these revisions. Whatever difference there may be in the meaning of the words when contrasted with their etymological origin shown by lexicographers, they have acquired by long usage a synonymous definition when used in this connection in our statutes. See also, St. 1786, p. 206, c. 68, § 1; Rev. St. 1836, c. 47, § 1. Whoever assumes to be a common victualer without a license may be said to take the position of falsely representing himself as lawfully engaged in such occupation, while if he appears by his conduct to be so employed he thereby indicates to the public generally that it may be presumed that he is carrying on the business thus indicated. Com. v. Wetherbee, 101 Mass. 214; Martin v. Bowker, 163 Mass. 461, 462, 40 N.E. 766. The evidence undoubtedly showed that the license in the present case had been issued in the name of one Miller, covering the premises where it was claimed that the defendant conducted a restaurant, and, if he was employed by him as his servant or agent, he would not be assuming to act as owner, nor guilty of a violation of the statute. But there was undisputed testimony that the defendant paid the rent, hired the help, and supplied and paid for the provisions used, while this was supplemented by admissions made by him that he was the owner of the 'lunch room,' and was conducting it for his own benefit. It further appeared that, being financially embarrassed, he had...