First Church of Christ, Scientist, in Boston v. Alcoholic Beverages Control Commission

• Decision Date: 07 June 1965
• Citation: First Church of Christ, Scientist, in Boston v. Alcoholic Beverages Control Commission, 207 N.E.2d 880, 349 Mass. 273 (Mass. 1965)
• Parties: The FIRST CHURCH OF CHRIST, SCIENTIST, IN BOSTON, Massachusetts v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.
• Writing for the Court: Before WILKINS; SPIEGEL
• Court: Supreme Judicial Court of Massachusetts

Page 880

207 N.E.2d 880

349 Mass. 273

The FIRST CHURCH OF CHRIST, SCIENTIST, IN BOSTON, Massachusetts v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 6, 1965.

Decided June 7, 1965.

David Lee Turner, Asst. Atty. Gen. (David Berman, Asst. Atty. Gen., with him), for respondent.

James D. St. Clair, Boston (John R. Peterson, Peter T. Kennedy and S. Donald Gonson, Boston, with him), for petitioner.

Before WILKINS, C. J., and WHITTEMORE, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

This is a petition by 'a duly organized [c]hurch' for a writ of certiorari to compel the Alcoholic Beverages Control Commission (ABC) to 'show cause * * * why * * * [it] should not be ordered to annul, or be restrained from putting into effect * * * [its] order of transfer [of a seven day all alcoholic beverages license from 175 Dartmouth Street, Boston, to 215 Massachusetts Avenue, Boston] and on a hearing of the issues have * * * [its] order of transfer quashed and declared invalid. The respondent demurred on the grounds, inter alia, that the petition 'does not set forth facts sufficient to warrant relief,' and that there are 'alternative statutory procedures available.' The demurrer was overruled, and the respondent appealed. The case was subsequently tried on the merits, and the respondent appealed from an order of the Superior Court that 'judgment be entered quashing * * * [its] decision * * * approving the transfer' on the ground that the premises to which the transfer was made 'are within * * * (500) feet of the petitioner's church edifice' in violation of G.L. c. 138, § 16C.

It is well established that review upon a writ of certiorari 'is available only for the purpose of examining and correcting the errors of law manifest upon the record of some tribunal in its performance of judicature, and to restrain the excesses of jurisdiction of inferior courts or officers acting judicially.' Fitzgerald v. Mayor of Boston, 220 Mass. 503, 506, 108 N.E. 355, 356; Clark v. City Council of Waltham, 328 Mass. 40, 41-42, 101 N.E.2d 369. The matter of which the petitioner complains does not fall under this classification. It does not 'relate to the exercise of any judicial or quasi judicial functions.' Stacy v. Mayor of City of Haverhill, 316 Mass. 759, 57 N.E.2d 564. See Hayeck v. Metropolitan Dist. Comm., 335 Mass. 372, 375, 140 N.E.2d 210. Compare Cambridge v. Board of Railroad Comm'rs, 153 Mass. 161, 169, 26 N.E. 241. The approval by the ABC of a transfer of a liquor license is discretionary and requires no hearing. G.L. c. 138, § 23. Springfield Hotel Ass'n, Inc. v. Alcoholic Beverages Control Comm., 338 Mass. 699, 701-702, 157 N.E.2d 219. For these reasons, it is not an adjudicatory proceeding under G.L. c. 30A. Id, at 702, 157 N.E.2d 219. Cf. Miller v. Alcoholic Beverages Control Comm., 340 Mass. 33, 34-35, 162 N.E.2d 656. Compare MILLIGAN V. BOARD OF REGISTRATION IN PHARMACY, MASS., 204 N.E.2D 504.^A For the same reasons, it cannot be reviewed on a writ of certiorari. See Natick Trust Co. v. Board of Bank Incorporation, 337 Mass. 615, 617, 151 N.E.2d 70; City Bank & Trust Co. v. Board of Bank Incorporation, 346 Mass. 29, 32, 190 N.E.2d 107. Cf. Hayeck v. Metropolitan Dist. Comm., 335 Mass. 372, 375, 140 N.E.2d 210. Neither Springfield Hotel Ass'n, Inc. v. Alcoholic Beverages Control Comm., 338 Mass. 699, 702-703, 157 N.E.2d 219, nor Town of Webster v. Alcoholic Beverages Control Comm., 295 Mass. 572, 573, 4 N.E.2d 302, is inconsistent with this holding. We note that the petitioner cannot invoke the remedy provided by G.L. c. 139, §§ 16 and 16A, ¹ as amended by St 1934, c. 328, §§ 11 and 12, since it is not a legal voter; but we do not reach the question whether it has any remedy at all. Compare Cleary v. Licensing Comm. of City of Cambridge, 345 Mass. 257, 186 N.E.2d 815; O'CONNOR V. DEPUTY COM'R & COMPTROLLER OF THE COMMONWEALTH, MASS., ...