Coyne v. Alcoholic Beverages Control Comm'n

• Decision Date: 27 October 1942
• Citation: 312 Mass. 224,44 N.E.2d 692
• Parties: COYNE v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 224

44 N.E.2d 692

COYNE

v.ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 27, 1942.

Exceptions from Superior Court, Middlesex County; Goldberg, Judge.

Certiorari by Francis J. Coyne against Alcoholic Beverages Control Commission to review action of commission in disapproving petitioner's application for a liquor license. To review an adverse judgment, petitioner brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

J. J. Tobin, of Boston, for petitioner.

R. T. Bushnell, Atty. Gen., and R. Clapp, Asst. Atty. Gen., for respondent.

FIELD, Chief Justice.

This petition for a writ of certiorari was brought in the Superior Court against the individuals constituting the alcoholic beverages control commission, hereinafter called the commission. G.L.(Ter.Ed.) c. 6, § 43, as appearing in St.1933, Ex.Sess. c. 375, § 1.

The licensing authorities of the city of Somerville on December 13, 1940, granted to the petitioner, subject to the approval of the commission, a restaurant license for the sale of all kinds of alcoholic beverages, obviously for the calendar year 1941. See G.L.(Ter.Ed.) c. 138, § 12, its amended form St.1935, c. 440, § 7. See, also, § 16B in its amended form, St.1937, c. 424, § 2. So far as appears from the record this was an original license and not a renewal. General Laws (Ter.Ed.) c. 138, § 12, in its amended form, provides expressly that the granting of such a license is ‘subject to the prior approval of the commission.’ The commission on January 24, 1941, disapproved the petitioner's application for a license, and on February 3, 1941, denied a motion of the petitioner for review of such action. The petitioner by this petition sought to have the action of the commission ‘relative to the disapproval of the issuance’ of such license ‘quashed and dealt with further’ by the court and sought for ‘such other and further relief as to * * * [the court] seems meet and just.’ A judge of the Superior Court on September 27, 1941, made an order for a judgment ‘quashing the proceedings had by the * * * [commission] upon the petition of objectors to the granting of an all-alcoholic restaurant license to the petitioner * * * and quashing the proceedings had by said * * * [commission] upon the petition of said Coyne for a review, and instructing said * * * [commission] to act upon the aforesaid proceedings without the participation therein of Arthur G. Burtnett, a member of said * * * [commission].’ The petitioner excepted to the part of this order for judgment that provided for ‘instructing said * * * [commission] to act upon the aforesaid proceedings without the participation therein of Arthur G. Burtnett, a member of said * * * [commission].’ The bill of exceptions was allowed by the trial judge on January 27, 1942, and thereafter the case was entered in this court. No exceptions of the commission are before this court.

No question is presented with respect to the part of the order for judgment relating to quashing the proceedings of the commission whereby it disapproved the granting of a license to the petitioner. The petitioner makes no contention that this part of the order was erroneous. Indeed, he took no exception thereto. He was not aggrieved thereby, for it was a part of the relief sought by him. In the absence, therefore, as here, of any exception by the commission, it is unnecessary to determine whether this part of the order was correct. The case must be decided on the basis that these proceedings of the commission rightly were to be quashed.

the sole issue with respect to the order for judgment is whether the trial judge was right in ordering that the commission be instructed ‘to act upon the * * * proceedings without the participation therein of Arthur G. Burtnett, a member of * * * [the commission.].’ This issue must be determined on the facts set forth in the return of the commissioners, as extended, and on the facts agreed by the parties at the trial by way of extension of the return. (Any objection as matter of practice to this method of extending the return was waived by the parties by proceeding to trial upon the return as so extended. See Byfield v. Newton, 247 Mass. 46, 53, 141 N.E. 658;Walenz v. Alcoholic Beverages Control Commission, 297 Mass. 133, 134, 7 N.E.2d 581. The facts set forth in the return as extended must be taken as true, and are the only facts upon which the proceedings before the commission can be reviewed. Morrissey v. State Ballot Law Commission, 312 Mass. 121, 124-127, 43 N.E.2d 385.

Upon the facts set forth in the return as extended no error was committed by the trial judge in ordering that the commission be instructed ‘to act upon the * * * proceedings without the participation therein of Arthur G. Burtnett, a member of * * * [the commission].’ The trial court under G.L. (Ter.Ed.) c. 249, § 4, see G.L.(Ter.Ed.) c. 213, § 1A, as last amended by St.1941, c. 180, had jurisdiction, when quashing the proceedings before the commission by reason of an irregularity therein, to provide for further proceedings to correct the irregularity. City of Lowell v. County Commissioners of Middlesex, 6 Allen, 131, 134. The order of the trial judge obviously was for that purpose. And for reasons hereinafter stated it was a proper order for that purpose.

The matter involved before the commission was the issuance of a license to the petitioner. It was essential to the validity of such a license that it be approved by the commission. G.L.(Ter.Ed.) c. 138, § 12, in its amended form. The license here in question has not been so approved. And the quashing by the court of the proceedings before the commission, though a reversal of the action of the commission in disapproving the license, would not amount to an approval of the license. Further proceedings by the commission would be necessary if the license was to be made effective. And the order of the trial judge to which the petitioner objects provided for such further proceedings.

There is nothing in the return as extended to show that the order did not make a proper provision for future proceedings. It provided for proceedings before the commission that under the governing statutes had jurisdiction of the matter of approving the license. It is apparent from the record of the case that the trial judge ordered by previous proceedings quashed because they were vitiated by the participation therein of Arthur G. Burtnett a member of the commission, who was disqualified from such participation by reason of interest in the subject matter of the proceedings. The petitioner makes no contention that the proceedings were vitiated on any other ground. And the return of the commissioners as extended shows no other ground for quashing the proceedings. Obviously the proper order to correct this irregularity was an order for further proceedings without the participation...