Adamsky v. City Council of New Bedford

• Decision Date: 01 February 1951
• Citation: 96 N.E.2d 718,326 Mass. 706
• Parties: ADAMSKY v. CITY COUNCIL OF NEW BEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 718

96 N.E.2d 718

326 Mass. 706

ADAMSKY v. CITY COUNCIL OF NEW BEDFORD.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 23, 1950.

Decided Feb. 1, 1951.

Kolman Shapira, New Bedford, for petitioner.

G. L. O'Malley, Asst. City Sol., New Bedford, for respondent.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

This petition for a writ of certiorari is brought to quash the proceedings of the city council of New Bedford revoking the petitioner's license for the keeping and storage of gasoline and oil on certain premises owned by him. The return includes a transcript of what purports to be all the evidence introduced at the hearing on the revocation. G.L.(Ter.Ed.) c. 249, § 4, as amended by St.1943, c. 374, § 1. Rule 117 of the Superior Court (1945). The judge ordered the petition dismissed and the petitioner appealed from this order.

Since the appeal is from an order for judgment it is not here under the form of appeal provided by G.L. (Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4. 'That section provides for an appeal from a 'final judgment,' with substantially the effect of an appeal from a final decree in equity, but it makes no provision for an appeal from an order for judgment.' Town of Needham v. County Commissioners of Norfolk, 324 Mass. 293, 295, 86 N.E.2d 63, 64. But the case is properly here under G.L. (Ter.Ed.) c. 231, § 96, as an appeal from an 'order decisive of the case founded upon matter of law apparent on the record'. Clement v. Selectmen of Westwood, 316 Mass. 481, 55 N.E.2d 692; Compare Town of Needham v. County Commissioners of Norfolk, 324 Mass. 293, 295, 86 N.E.2d 63. On this point the present case is distinguished from the case last cited. There the case was not heard solely on the petition and return; there was also oral evidence. Here it appears that the case was heard only on the petition and the return. In these circumstances the appeal was from an 'order decisive of the case founded upon matter of law apparent on the record.'

The scope of the present inquiry is to determine whether there is substantial error of law apparent on the face of the respondents' return. Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180, 181, 65 N.E.2d 199, 168 A.L.R. 8.

The return includes the following: The property in question consists of an eleven car garage. In 1926 the petitioner's predecessor in title was granted a license for the storage of gasoline and oil under the provisions of G.L. c. 148, § 14, the predecessor of G.L. (Ter.Ed.) c. 148, § 13. Annual certificates of registration required by the present section 13 were filed down to and including April 27, 1943, the last certificate being filed by one Grenier who then owned or occupied the property. From 1943 through 1947 no registration certificate was filed. On December 20, 1947, the premises were conveyed to the petitioner. On April 2, 1948, the petitioner tendered to the city clerk a certificate of registration in the proper form, together with the appropriate fee, but the clerk refused to receive them. The certificate was then thrown on the clerk's desk and the clerk, supposedly because the 'council had revoked the license' or because he had been advised by the city's fire inspector that the premises 'did not meet fire regulations,' mailed the certificate back to the petitioner's attorney. ¹

On July 23, 1948, the city clerk on behalf of the respondents notified the petitioner in writing that on August 3 at a specified time and place they would hold a hearing to determine whether the petitioner's license should be revoked for the following reasons: '1. Annual certificates of registration as required by law have not been filed since 1943. 2. The use of the property for storage of petroleum and/or petroleum products has been abandoned. 3. The premises do not meet requirements of the fire laws and regulations.' After a hearing, the respondents voted to revoke the petitioner's license on the first two grounds. It appears in the return, and it is not disputed, that the respondents are the local licensing authority under G.L. (Ter.Ed.) c. 148 and have the authority to grant and revoke licenses to keep and store gasoline and oil.

The license in question was not a mere personal privilege. Having been exercised it ripened into a grant which was attached to and ran with the land. Accordingly when the petitioner became the owner of the land he also acquired the license as an incident of such ownership. Saxe v Street Commissioners of Boston, 307 Mass. 495, 498, 30 N.E.2d 380, 131 A.L.R. 1336. Since the license was granted prior to July 1, 1936, it remained in force 'unless and until revoked as hereinafter provided.' G.L.(Ter.Ed.) c. 148, § 13, as appearing in St.1936, c. 394, § 1. Compare City of Boston v. White Fuel Corp., 294 Mass. 258, 1 N.E.2d 186, construing section 13 prior to the 1936 amendment. Elsewhere in section 13 it is provided that licenses of the sort here involved 'may be revoked for cause, after notice and a hearing given to * * * [the] owner or occupant' of the property.

It remains to consider whether the respondents committed an error of law in revoking the licenses. We are of opinion that they did not. Under section 13 the owner or occupant of the land licensed as therein provided 'shall annually, on or before April thirtieth, file with the clerk of the city * * * where such license is to be or has been exercised * * * a...