Albano v. Selectmen of South Hadley

• Citation: 341 Mass. 494,170 N.E.2d 685
• Parties: Michael W. ALBANO v. SELECTMEN OF SOUTH HADLEY.
• Decision Date: 05 December 1960
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 685

170 N.E.2d 685

341 Mass. 494

Michael W. ALBANO v. SELECTMEN OF SOUTH HADLEY.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 30, 1960.

Decided Dec. 5, 1960.

Edward M. Dangel, Boston (Michael W. Albano, Springfield, with him,) for petitioner.

Frank Hurley, Town Counsel, Holyoke, for respondents.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, and CUTTER, JJ.

WHITTEMORE, Justice.

The petitioner has appealed from the denial of his motion to extend the return and from the order for final judgment which dismissed the petition for a writ of certiorari. Nothing shows that this was not in the exercise of the discretion which is given the judge in such a case. Whitney v. Judge of Dist. Court of Northern Berkshire, 271 Mass. 448, 459, 171 N.E. 648; Morrison v. Selectmen of Weymouth, 279 Mass. 486, 494-495, 181 N.E. 786; Amero v. Board of Appeal of City of Gloucester, 283 Mass. 45, 52, 186 N.E. 61; Colantuoni v. Selectmen of Belmont, 326 Mass. 778, 779, 96 N.E.2d 870.

We assume that, had the return been extended, it would have shown that the denial, on January 20, 1959, of the petitioner's application for a permit to use his land for the keeping and sale of gasoline and petroleum products was after the board of selectmen had heard in opposition two officers of Plastic Coating Corporation, the only abutter, and had denied the petitioner's motion that the respondent Bock, one of the three members of the board, be disqualified for the reason that he was employed by the abutter as superintendent and perhaps also was corporate officer. The return shows that the denial of the application was by vote of Bock and one other selectman, and that the third member of the board abstained.

We assume, also, in view of the quasi judicial aspect of the licensing function (Fay, petitioner, 15 Pick. 243, 248; Marcus v. Board of Street Com'rs of Boston, 252 Mass. 331, 335, 147 N.E. 866; Scudder v. Board of Selectmen of Sandwich, 309 Mass. 373, 376-377, 34 N.E.2d 708; compare Stacy v. Mayor of City of Haverhill, 316 Mass. 759, 57 N.E.2d 564; Clark v. City Council of Waltham, 328 Mass. 40, 101 N.E.2d 369; Hayeck v. Metropolitan Dist. Comm., 335 Mass. 372, 375, 140 N.E.2d 210) that the principle was relevant that an interested member of the board is disqualified if the judicial function involved can be performed without his participation. See Coyne v. Alcoholic Beverages Control Comm., 312 Mass. 224, 44 N.E.2d 692; Low v. Town of Madison, 135 Conn. 1, 60 A.2d 774; Aldom v. Borough of Roseland, 42 N.J.Super. 495, 508-509, 127 A.2d 190; 41 Col.L.Rev. 1384, 1394, 1397; Davis, Administrative Law, §§ 12.03, 12.04. Compare Moran v. School Committee of Littleton, 317 Mass. 591, 593-594, 59 N.E.2d 279. There is, however, for the reasons stated in the next paragraph, no occasion to rule on the issue of Bock's disqualification for alleged interest nor the petitioner's right to an extension of the return in other circumstances. As to such extension, see Farmington River Water Power Co. v. County Com'rs, 112 Mass. 206, 214; Tewksbury v. County Com'rs of Middlesex, 117 Mass. 563, 564-565; Tileston v. Street Com'rs of City of Boston, 182 Mass. 325, 327, 65 N.E. 380; Swan v. Justices of Superior Court, 222 Mass. 542, 545-546, 111 N.E. 386; Byfield v. City of Newton, 247 Mass. 46, 53, 141 N.E. 658; Marinelli v. Board of Appeal of Building Department of City of Boston, 275 Mass. 169, 174, 175 N.E. 479.

The motion to extend the return avers that on January 21, 1959, Bock resigned to take effect March 1, 1959. The denial of the application deprived the petitioner of no existing right, and he is not barred from reapplying. See G.L. c. 148, § 13. The issuance of a writ of certiorari could neither give the petitioner a license nor lessen the significance of events, if any, subsequent to January 20, 1959, relevant to the later exercise of judgment and discretion by a new board of selectmen on a new application by the petitioner. Had Bock withdrawn when the motion to disqualify him was...