Bushway-Whiting Ice Cream Co. v. Mayor & Aldermen of Somerville

• Decision Date: 28 January 1941
• Citation: 31 N.E.2d 533,308 Mass. 148
• Parties: BUSHWAY-WHITING ICE CREAM CO. v. MAYOR AND ALDERMEN OF SOMERVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 148

31 N.E.2d 533

BUSHWAY-WHITING ICE CREAM CO.

v.MAYOR AND ALDERMEN OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 28, 1941.

Proceeding by Bushway-Whiting Ice Cream Company and others against one Lynch, the Mayor and Aldermen of Somerville for a writ of mandamus commanding the revocation of a license to carry on a slaughtering and rendering business. From an order sustaining respondents' demurrer and dismissing the petition, petitioners appeal under G.L.(Ter.Ed.) c. 231, § 96.

Order affirmed.Appeal from Superior Court, Middlesex County; Good, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

H. W. Cole, of Boston, for petitioner.

R. J. Muldoon, of Somerville, for respondent.

C. J. Muldoon, of Somerville, amicus curiae.

LUMMUS, Justice.

This is a petition for a writ of mandamus, brought by owners and occupants of land in Somerville near a location at which the respondent aldermen of Somerville, on November 20, 1939, issued to the Brighton Dressed Beef and Veal Company a license to carry on a business of slaughtering and rendering in a building not yet erected. The prayer is for a writ of mandamus commanding the revocation of the license. The answer of the respondents included a demurrer, one of the grounds for which was the alleged failure of the petition to state facts calling for the relief asked. Finlay v. Boston, 196 Mass. 267, 269, 82 N.E. 5,Wesalo v. Commissioner of Insurance, 299 Mass. 495, 13 N.E.2d 420. The judge in the Superior Court sustained the demurrer on that ground, and ordered the petition dismissed. The petitioners appealed under G.L.(Ter.Ed.) c. 231, § 96.

The first question is, Under what statute was the license in question granted? G.L.(Ter.Ed.) c. 111, § 151, which originated in St.1871, c. 167 (compare Gen.Sts. [1860] c. 26, § 52; G.L. [Ter.Ed.] c. 111, § 143; St.1933, c. 269, § 2; Cambridge v. Trelegan, 181 Mass. 565, 64 N.E. 204;Revere v. Riceman, 280 Mass. 76, 181 N.E. 716) requires a license, spoken of as ‘written consent and permission,’ before one may ‘occupy or use a building for carrying on the business of slaughtering * * * or for other noxious or offensive trade and occupation.’ The licensing authority is ‘the mayor and city council,’ or ‘the selectmen,’ or in towns having a population of more than five thousand, ‘the board of health.’ The constitutionality of this statute was settled by Watertown v. Mayo, 109 Mass. 315, 12 Am.Rep. 694.

G.L.(Ter.Ed.) c. 94, §§ 118, 119, originated in St.1894, c. 491, entitled ‘An act to codify and consolidate the laws relating to contagious diseases among domestic animals.’ The original act provided for local inspectors of animals and provisions, and for an inspection of the carcasses of all slaughtered animals. Section 10. Sections 17 and 18 of the original act are comparable to the present G.L.(Ter.Ed.) c. 94, §§ 118, 119. The latter sections require a license, not to occupy or use a building for slaughtering, but ‘to carry on the business of slaughtering.’ The license is not unlimited in time, but is an annual license applied for in April and continuing in force only until May first of the year next ensuing. The licensing authority is not precisely the same as under the statute discussed in the preceding paragraph. The ‘aldermen,’ and not ‘the mayor and city council,’ constitute the licensing authority in cities. Besides, the aldermen may designate other officers as the licensing authority. See also G.L.(Ter.Ed.) c. 111, § 154, as amended St.1934, c. 340, § 9.

The allegations of the petition show that the license in question was granted under G.L.(Ter.Ed.) c. 94, §§ 118, 119, rather than under c. 111, § 151. The application was for a license ‘to carry on the business of slaughtering and rendering.’ The application was written upon a printed form which bore a legend relating to c. 94, § 118, and it contained statements required by that section as to the estimated number of animals a week to be slaughtered. The license granted was ‘to carry on a business of slaughtering and rendering.’ The application was filed with, and the license was granted by, the board of aldermen. These indications are not overcome by the reference in the petition to c. 111, § 151, in connection with an unsound contention that action by a board of health in a city is necessary to action under that section. Revere v. Riceman, 280 Mass. 76, 80, 181 N.E. 716.

Since the license was granted under G.L.(Ter.Ed.) c. 94, §§ 118, 119, it expired on May 1, 1940, six months before the case was argued in this court. But it was conceded at the argument that a new renewal license was granted to take effect on May 1, 1940, and this new license will not expire until May 1, 1941. The new license is open to all the objections to which the earlier one was open. There is nothing in the objection that ‘the said license or permit was issued at a meeting of the board of aldermen which was neither called nor conducted in accordance with the legal requirements pertaining thereto; and that said license or permit was issued without proper consideration by the said board of aldermen and the issuance thereof was based upon considerations not relating to the merits thereof.’ That objection sets forth legal conclusions rather than facts. Wesalo v. Commissioner of Insurance, 299 Mass. 495, 498, 13 N.E.2d 420,Hitchcook v. Examiners for Hampshire County, 301 Mass. 170, 171, 172, 16 N.E.2d 678. For all that appears, all the aldermen were present and waived notice. Their motives in voting to grant the license are not the subject of judicial inquiry. Downey v. School Committee of Lowell, 305 Mass. 329, 25 N.E.2d 738;Gibney v. Mayor of Fall River, 306 Mass. 561, 29 N.E.2d 133. Compare Garvey v. Lowell, 199 Mass. 47, 85 N.E. 182,127 Am.St.Rep. 468;Williams v. New Bedford, 303 Mass. 213, 215, 216, 21 N.E.2d 265.

The main objection to the validity of the license is that the application did not contain and was not accompanied by any plan or complete description of the proposed building in which...