Mosey Cafe, Inc. v. Mayor of Boston

Citation154 N.E.2d 591,338 Mass. 207
PartiesMOSEY CAFE, Inc. v. MAYOR OF BOSTON et al.
Decision Date05 December 1958
CourtUnited States State Supreme Judicial Court of Massachusetts

Hirsh Freed, Boston, Arthur Sherman and Herbert Baer, Boston, for plaintiff.

William H. Kerr, Boston, for respondent Licensing Bd. of Boston, et al.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

WILKINS, Chief Justice.

This bill in equity for a declaratory decree under G.L. c. 231A is reserved and reported without decision upon the pleadings and an agreement as to all the material facts. G.L. c. 214, § 31. This case is complementary to Mosey Cafe, Inc., v. Licensing Board for City of Boston, Mass., 514 N.E.2d 585, which deals with licensing problems on weekdays whereas this case deals with similar problems on the Lord's day.

The issues are whether G.L. c. 136, § 4, and Revised Ordinances of Boston (1947) c. 40A, § 1, cl. 298, are inapplicable or void as to the plaintiff in so far as they purport to impose licensing requirements and the payment of license and approval fees for furnishing on the Lord's day public 'musical entertainment provided by mechanical or electrical means' through the use of 'juke boxes,' television, or radio. The mayor, the city, and the commissioner of public safety of the Commonwealth are parties defendant.

Many facts are the same as in the other case, to which we refer. The plaintiff, operator of the 'Ball and Bat Cafe' in Boston, is licensed by the licensing board for the city of Boston as a common victualler under G.L. c. 140, § 2, and as a common victualler has been further licensed by the board under G.L. c. 138, § 12, as amended, to sell, on all days of the week, all alcoholic beverages for consumption on its premises.

The plaintiff contends that it has the right to furnish to customers, at lawful times and in a proper manner and in compliance with all other pertinent laws, public entertainment on the Lord's day through the use of television, radio, and 'music provided by mechanical or electrical means' without applying for any license or approval in writing under G.L. c. 136, § 4, and without paying any fee under § 4 or under cl. 298 of the ordinance.

General Laws c. 136, § 4, reads: '* * * the mayor of a city * * * may, upon written application describing the proposed entertainment, grant, upon such terms or conditions as * * * [he] may prescribe, a license to hold on the Lord's day a public entertainment, including musical entertainment provided by mechanical or electrical means, in keeping with the character of the day and not inconsistent with its due observance, whether or not admission is to be obtained upon payment of money or other valuable consideration, and, if the proposed entertainment described in the application is solely * * * for the benefit of patrons in a public dining room or for the use of televisions, the use of radio, or musical entertainment provided by mechanical or electrical means, the mayor * * * may grant an annual licenses therefor; 1 provided, that no such license shall be granted to have effect before one o'clock in the afternoon, nor shall it have effect unless the proposed entertainment shall have been approved in writing by the commissioner of public safety as being in keeping with the character of the day and not inconsistent with its due observance. * * * The foregoing provisions, insofar as they authorize any person to refuse to grant, or to suspend, revoke or annual a license upon the ground that the proposed entertainment is not in keeping with the character of the Lord's day or not consistent with its due observance, and insofar as they require written approval of the proposed entertainment by said commissioner, shall not apply to any person making an application for a license to exhibit motion pictures or for the use of radio or television on said day, nor to any license issued upon such application.' 2

Revised Ordinances of Boston (1947) c. 40A, § 1, purports to fix fees and charges under St.1949, c. 222, and cl. 298, entitled 'Sunday Entertainment License,' which need not be quoted at length, fixes fees for licenses granted by the mayor under G.L. c. 136, § 4.

The mayor in issuing annual licenses under G.L. c. 136, § 4, as amended, has treated the year as commencing with the date of the license.

In the years 1953 to 1957, inclusive, the plaintiff applied to the mayor, who granted, upon payment in each of those years of a fee of $50, an annual 'Sunday Entertainment License' to hold on Sundays a public entertainment through the use of television, radio, and music provided by 'mechanical or electrical means.' At the time of the filing of the bill, the last such license issued to the plaintiff covered the twelve month period ending September 30, 1958.

In the years 1953 to 1957, inclusive, the plaintiff applied to the commissioner for his approval in writing under G.L. c. 136, § 4, as amended, 'as being in keeping with the character of the day and not inconsistent with its due observance,' of the use of 'musical entertainment provided by mechanical or electrical means,' other than by television or radio, proposed to be furnished under the plaintiff's annual 'Sunday Entertainment License.' The plaintiff paid in connection with each application a fee of $50. In granting approval the commissioner ascertained that the proposed entertainment was to be provided by a coin-operated 'juke box.' He was not so requested and did not in fact pass upon the contents of any records to be played.

Chapter 136, § 4, as we construe it, requires that the plaintiff obtain a Sunday license to hold a public entertainment by the use of television, radio, or 'juke box.' Television and radio are expressly exempt (1) from the granting of a license by the mayor tested by the entertainment being ...

To continue reading

Request your trial
4 cases
  • Konstantopoulos v. Town of Whately
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 27 Julio 1981
    ...... Cf. Chakrabarti v. Marco S. Marinello Assocs., Inc., 377 Mass. 419, 386 N.E.2d 1248 (1979). The merger of law ...Police Comm'r of Boston, 261 Mass. 269, 159 N.E. 41 (1927), cert. denied sub nom. ... See Mosey Cafe, Inc. v. Licensing Bd. for Boston, 338 Mass. 199, 154 ...591, 594-595, 59 N.E.2d 279 (1945); Farrell v. Mayor of Revere, 306 Mass. 221, 225, 27 N.E.2d 724 (1940). . ......
  • Hall-Omar Baking Co. v. Commissioner of Labor and Industries
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 5 Julio 1962
    ...81 S.Ct. 1122, 6 L.Ed.2d 536. See Commonwealth v. Chamberlain, 343 Mass. ----, 175 N.E.2d 486. a See also Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass. 207, 211, 154 N.E.2d 591. The burden is on the person attacking the statute to show that there is no conceivable ground for sustaining it.......
  • City of Revere v. Aucella
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Diciembre 1975
    ...city council, citing Mosey Cafe, Inc. v. Licensing Bd. of Boston, 338 Mass. 199, 154 N.E.2d 585 (1958), and Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass. 207, 154 N.E.2d 591 (1958). We are inclined to agree that the local licensing board derives its authority directly from the Commonwealth......
  • Com. v. Blackgammon's, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 18 Febrero 1981
    ...recorded music and dancing." This court upheld the validity of the statute as applied to a "juke box" in Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass. 207, 154 N.E.2d 591 (1958). The question now before us is thus whether the decision in Mosey Cafe, supra, must be overruled because the sta......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT