City of Boston v. Epple

• Decision Date: 28 May 1915
• Citation: 221 Mass. 395,108 N.E. 1056
• Parties: CITY OF BOSTON v. EPPLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 395

108 N.E. 1056

CITY OF BOSTON v. EPPLE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1915

COUNSEL

Jos P. Lyons, of Boston, for plaintiff.

Mayberry Hallowell & Hammond, of Boston, for defendant.

OPINION

CARROLL J.

The defendant is the secretary of the licensing board of the city of Boston. St. 1906, c. 291. He was appointed in June, 1906 and has acted continuously as such secretary up to the date of the writ in this action. At the beginning of his service he received an annual salary of $2,500. Since January 1, 1913, he has received a salary of $3,000 a year.

Under R. L. c. 100, § 10, each licensee, in addition to the fee required by section 19 of that chapter for the privilege of selling intoxicating liquor, is called upon to pay a fee of $1 to the recording officer for recording the license. Under section 45, the treasurer of each city and town is required, 'within thirty days after the receipt of money for licenses for the sale of intoxicating liquors,' to pay to the treasurer and receiver general 'one-fourth of the amount so received.' It has been the uniform practice throughout the commonwealth under section 45, as well as under the earlier statutes (St. 1875, c. 99, § 10; Pub. St. c. 100, § 14), for city and town treasurers to pay over to the treasurer of the commonwealth one-fourth of the fees received for the privilege of doing business as a liquor dealer.

'But said treasurers have never paid over to the treasurer of the commonwealth any part of the amounts received for recording liquor licenses, nor made any return of such amounts, nor been required by the treasurer of the commonwealth to make payment or return of such amounts.'

Before St. 1906, c. 291, creating the licensing board of the city of Boston, the clerk or secretary of the board of police of the city of Boston, acting under St. 1885, cc. 83 and 323, recorded all liquor licenses and received and retained for himself $1 for recording each license.

St. 1906, c. 291, § 4, declares that except as otherwise provided, the licensing board shall exclusively exercise in the city of Boston all the powers conferred on the board of police for that city, and upon licensing boards by sections 10-90, both inclusive, of R. L. c. 100, and by R. L. c. 102, relative to common victualers and innholders; and that the board shall have charge of the licensing of picnic groves, skating rinks, intelligence offices, billiard tables and bowling alleys. The last paragraph of this section (section 4) is as follows:

'All licenses issued by said board * * * shall be recorded in the office of said board, and all fees for said licenses shall be paid into the treasury of said city.'

Following the passage of this statute and up to 1913, the defendant paid over to the city of Boston all fees received by him for the recording of licenses.

On February 26, 1913, the licensing board passed this vote:

'That the secretary need not turn over any more recording fees to the city.'

After the passage of this vote the defendant received for recording liquor licenses $1,634 in the year 1913 and $1,439 in the year 1914, making a total of $3,073 which he has not paid into the treasury of the plaintiff city, but has appropriated to his own use. The question in the case is whether this sum of $3,073, received for the recording of liquor licenses, belongs to the defendant or to the city of Boston, the defendant maintaining that where the statute directs the payment to the city of 'all fees for said licenses,' it refers to the fees paid for the license, that is, the sum paid for the right or privilege to sell intoxicating liquor, and it does not refer to the fee paid for the mere recording of the license.

The decision in this case turns upon the true intent and meaning of the words, 'and all fees for said licenses shall be paid into the treasury of said city,' which words are contained in chapter 291, § 4, St. 1906, under which statute the licensing board of the city of Boston was appointed by the Governor of the commonwealth, and which board in turn under section 1 appointed the defendant, who has been acting as the secretary since 1906. What were the license fees referred to when the Legislature in the above quoted phrase, directed the board to pay over all fees to the city of Boston? The Legislature had some purpose in view in using this language, and intended thereby to provide for the ultimate distribution of fees, a matter which under the then existing law was not clearly and sufficiently provided for. To determine the precise meaning of these words and the intent of the Legislature in adopting them, we must have resort to the provisions of law existing at the time the statute under consideration was enacted, and determine if possible what fees, if any, were to be paid to the licensing board, and whether the...