Cheney v. Coughlin
| Decision Date | 26 February 1909 |
| Citation | 201 Mass. 204,87 N.E. 744 |
| Parties | CHENEY et al. v. COUGHLIN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Guy A. Ham, for petitioners.
Jas. F Sweeney and Howard A. Wilson, for respondents.
This is a petition brought under Rev. Laws, c. 101, § 8, by 10 legal voters of the town of Maynard, averring that a certain building in said town was used for the illegal keeping and selling of intoxicating liquors, and praying for its abatement as a common nuisance. There was a trial in the superior court, and the presiding justice found that the defendant Clark on March 25, 1908, made an application to the selectmen of the town of Maynard for a license as an innholder and for first and fourth class liquor licenses. This application described the premises as a 'building to be erected on lot on southerly side of Main street corner of River street in said Maynard in the whole of said building cellar for stock only of such building.' At that time there was no building and none in process of erection on the lot. Publication of notice of this application was duly made. On April 15, 1908, the board of selectment licensed four places for the sale of intoxicating liquors, being authorized by law to license five, and determined informally to grant a license to Clark when the building was so far completed that an innholder's license could be granted, but no formal action was taken. On March 31, 1908, the work of digging the cellar for the building began, and on April 28, 1908, the foundations and cellar being then ready, the work of constructing the superstructure was begun and was completed on June 27, 1908. On May 22, 1908, the building was so far completed and furnished that strangers and travelers to a limited number might be fed and lodged, although it was far short of being finished. On May 22, 1908, the defendant Clark applied for a license as an innholder, and on that day the selectment granted an innholder's license and a first and fourth class liquor license to do business at 34 and 36 Main street. The defendant Coughlin is the owner of the building. In the superior court a degree was entered for the petitioners, on the ground that the licenses for the sale of intoxicating liquors were void.
The respondent contends that the superior court had no jurisdiction of the cause upon the facts found, the argument being that inasmuch as the selectment have undertaken to grant a license and have acted in a quasi judicial capacity, their acts can be reviewed only by certiorari. If it be assumed in their favor that the act of granting liquor licenses is a quasi judicial one, it does not follow that the Legislature cannot provide a remedy by which such action can collaterally be brought under review. It has not infrequently been held that prerogative writs will not be issued in cases where another adequate remedy has been provided by statute. Perry v. Hull, 180 Mass. 547, 62 N.E. 962; Attorney General v. N. Y., N.H. & H. R. R. Co., 197 Mass. 194, 83 N.E. 408. But there is no converse of this principle. The language of the statute, under which the present petition is brought, is general and confers jurisdiction whenever premises are used for the illegal keeping or sale of intoxicating liquors. This language must have been intended to include, as it does by apt expression, instances of violation of law by the holder of a license as well as by unlicensed persons.
At the time the application for the licenses was filed and at the time notices were published, there was no building upon the lot of land upon which subsequently the building described in the licenses was constructed. It is plain, from the several provisions of the liquor license law, that no license can be granted to be exercised anywhere except in a building. There is no detailed statutory requirement as to the contents of the application, but Rev. Laws, c. 100, § 14, makes specific enumeration of certain matters which must be contained in the notice. By implication therefore the statute requires that the application shall at least contain all the descriptive information which must be set out in the notice, namely, 'the name of the applicant in full, the class of license applied for, a particular description of the premises on which the license is to be exercised, designating the building or part of a building to be used, and, if practicable, the street and number.' It was said in Braconier v. Packard, 136 Mass. 50, 53, that 'the object of the provision is to give full information to the public of the person who applies and of the place where the license is to be exercised, so that any citizen may object to the granting of the license.' A building cannot be intelligently and certainly designated to the general public until it exists as a physical structure. This purpose of the statute cannot be executed without an actual edifice in existence. All the material conditions for the legal exercise of the license if granted must be in real physical existence at the time the application is filed. The proceeding for the procurement of the license is prematurely instituted, unless these essential prerequisites are in being. One pertinent ground for objection to the granting of a first-class innholder's license for the sale of intoxicating liquors might well be that the building was ill adapted for uses as an inn, and that it was described as such solely as a cover for the purpose of securing the larger privileges as to the sale of liquor which accompany a license of that sort. Unless the building is on the face of the earth the public at large would have no information upon this matter. Another objection might be that the building was within the prohibited distance from a schoolhouse. In conceivable instances this might depend upon measurements of some nicety, which could only be made respecting a genuine building, and not one resting only on the imagination. Whether the provisions of law respecting screens, shutters, stained glass windows, use as dwelling house or communication with a dwelling house (Rev. Laws, c. 100, §§ 34, 36, 37) have been complied with can only be within the possible knowledge of any of the interested and objecting public as to an existing building. While the maintenance of a public bar was prohibited (Pub. St. 1882, c. 100, § 9, cl. 5; St. 1891, p. 948, c. 369) whether there was this illegal appointment could be determined only of an actual building. The right of an adjoining owner to object to the granting of certain classes of licenses, dependent as it is upon proximity in linear distance to the 'premises described in the application' contemplates the physical description of an existing structure in the application and notice. Rev. Laws, c. 100, § 15. It is plain, therefore, that the application must describe an actual building, and that such a structure must be set forth in the notice. It follows that this application did not conform to the statute, and no valid license could be granted upon it. It remains to inquire, however, whether this difficulty in the procedure went to the jurisdiction of the selectmen in granting the license or whether the paper when granted remained in force until revoked in one of the ways pointed out in the statute. The difficulty with the defendant Clark is that the irregularity in the granting of the license began with his own unwarranted act in describing in his application a building not then in existence. His application which was his own act showed on its face than no legal license could be granted upon it. It is the general rule that a public board when acting under authority conferred by statute in issuing licenses must conform to the provisions of the statute, and if they fail to exercise their authority pursuant to its terms the licensee is not protected. This was laid down in an early case respecting the license of an auctioneer. Clark v. Cushman, 5 Mass. 505. In other jurisdictions it has been frequently held that the requirement of a notice as a prerequisite to the granting of a license is jurisdictional, and that a failure to comply or defective compliance with this requirement is not a mere irregularity in the proceedings, but one which renders them wholly void and the license of no protection. Pisar v. State, 56 Neb. 455, 76 N.W. 869; Brown v. Murphy, 51 N. J. Law, 250, 17 A. 157; People v. Davis, 36 N.Y. 77; Russell v. State, 77 Ala. 89; Lombard v. Cheever, 3 Gilman (Ill.) 469; State v. Moore, 46 N.C. 276; House v. State, 41 Miss. 737.
It has been repeatedly held in cases arising under our liquor laws that a license granted in violation of some provision of the license law was illegal, and although unrevoked afforded no protection against criminal proceedings for acts, which would not be contrary to the statute, if the license was of any validity. For instance, licenses to be exercised in buildings within 400 feet of a schoolhouse, although regular in form have been held to be no justification to the holder. Commonwealth v. Whelan, 134 Mass. 206; Commonwealth v. Jones, 142 Mass. 573, 8 N.E. 603; Commonwealth v. McDonald, 160 Mass. 528, 36 N.E. 483. So also a license issued in excess of the number permitted by law (Commonwealth v. Hayes, 149 Mass. 32, 20 N.E. 456), or to be exercised in a building used in part as a dwelling house (Commonwealth v....
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