338 Mass. 207 (1958), Mosey Cafe, Inc. v. Mayor of Boston

Citation:338 Mass. 207, 154 N.E.2d 591
Party Name:MOSEY CAFE, Inc. v. MAYOR OF BOSTON et al.
Case Date:December 05, 1958
Court:Supreme Judicial Court of Massachusetts
 
FREE EXCERPT

Page 207

338 Mass. 207 (1958)

154 N.E.2d 591

MOSEY CAFE, Inc.

v.

MAYOR OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

December 5, 1958

Argued Oct. 7, 1958.

[154 N.E.2d 592] 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.

Page 208

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 [154 N.E.2d 593] 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

Page 209

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...

To continue reading

FREE SIGN UP