Higgins v. Bd. of License Comm'rs of Quincy

Decision Date28 January 1941
Citation308 Mass. 142,31 N.E.2d 526
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Supreme Judicial Court, Suffolk County.

Certiorari by Frederick Higgins against the Board of License Commissioners of the City of Quincy to quash the revocation by defendants of a license to keep and sell petroleum products. To an order dismissing the petition and to the refusal to grant certain requests for rulings, petitioner excepts.

Exceptions sustained.

Argued before FIELD, C. J., and DOLAN, COX, and RONAN, JJ.

E. O. Proctor, of Boston, for petitioner.

R. S. Riley, of Boston, for respondents.

RONAN, Justice.

This is a petition for a writ of certiorari to quash the revocation by the respondent board on April 28, 1939, of a license, issued to the petitioner on January 13, 1939, under G.L. (Ter.Ed.) c. 148, § 13, as amended by St. 1938, c. 99, to keep, store and sell petroleum products and denatured alcohol upon certain premises in Quincy. The return as extended shows that the respondent board mailed, postpaid, on April 24, 1939, a notice addressed to the petitioner to the effect that a hearing would be held at a certain hour on April 28, 1939, in the office of the city clerk, to show cause why his license should not be revoked for ‘Breach of conditions of said permit’; that a hearing was held at the time and place stated in the notice, at which the petitioner did not appear and at which the board unanimously voted to revoke the license. The petitioner was notified under date of April 28, 1939, that his license was revoked for breach of its conditions. The return as extended further disclosed that, before the issuance of the license, the respondent board, ‘following its usual custom, as a condition of the issuance of the license required that the petitioner truthfully state in writing the kind and quality of materials‘ that he intended to sell; that the petitioner sent a letter in which he stated that he had made a contract with a certain company for the purchase of oil and gasoline to be sold by him provided the license was granted; that the license was revoked because the board found that the petitioner was not the owner or occupant of the licensed premises; that gasoline and oil were sold upon the licensed premises by an oil company directly to customers; that the written statement of the petitioner, made before the granting of the license, that he had contracted for the oil and gasoline from a certain company was a mistatement; that the petitioner was not the real applicant for or the user of the license, but was in fact a straw for the real applicant, another oil company; and that the petitioner had deliberately attempted to conceal the identity of the real owner and operator of the premises. The judge found that the petitioner received the notice of the hearing but did not appear, and that the license was revoked on account of ‘misrepresentations by the licensee as to matters which the board could properly take into account in the issuance of such a license.’ He ordered the petition dismissed. The petitioner excepted to this order and to the refusal to grant certain of his requests for rulings.

The nature of a license authorizing the use of a building or structure to keep, store, manufacture and sell gasoline and similar products has been determined by this court. Such a license in one aspect is a personal privilege, conferred upon one to enable him to use his land for certain purposes; and in another aspect the license, as soon as the rights conferred by it are exercised, becomes a grant which attaches and thereafter runs with the land. Quinn v. Middlesex Electric Light Co., 140 Mass. 109, 3 N.E. 204;Hanley v. Cook, 245 Mass. 563, 139 N.E. 654;Marcus v. Street Commissioners, 252 Mass. 331, 147 N.E. 866;Simon v. Meyer, 261 Mass. 178, 158 N.E. 537;Weiss v. Mayor & City Council of Woburn, 263 Mass. 30, 160 N.E. 444;Saxe v. Street Commissioners, 307 Mass. 495, 30 N.E.2d 380, 131 A.L.R. 1336. The license is not a contract but is the means adopted to accomplish or carry out a provision enacted under the police power to supervise and control a certain use of private property which, unless regulated, might result in a serious fire hazard threatening the safety of the community. Calder v. Kurby, 5 Gray 597;Newcomb v. Aldermen of Holyoke, 271 Mass. 565, 171 N.E. 826.

The license was granted in accordance with the statute, G.L. (Ter.Ed.) c. 148, § 13, as amended by St. 1938, c. 99, which provided that it ‘may be revoked for cause, after notice and a hearing given to such owner or occupant, by the local licensing authority.’ The rights of the petitioner are entirely dependent upon the provisions of the statute. He sought and secured a license that was subject to a power of revocation which, if exercised in compliance with the statute, would give him no just ground of complaint. Commonwealth v. Kinsley, 133 Mass. 578;Union Institution for Savings v. Boston, 224 Mass. 286, 112 N.E. 637;Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95, 126 N.E. 456;Newcomb v. Aldermen of Holyoke, 271 Mass. 565, 171 N.E. 826;Revere v. Riceman, 280 Mass. 76, 181 N.E. 716;N. V. Handel Industrie Transport Maatschappij v. State Fire Marshall, 305 Mass. 482, 26 N.E.2d 304.

The statute does not enumerate the specific grounds upon which the power of revocation may be exercised, Commonwealth v. Moylan, 119 Mass. 109;Commonwealth v. Hamer, 128 Mass. 76, but authorized in general terms a revocation for cause. Consequently, a revocation cannot be effected except for a cause sufficient in law. Dunn v. Mayor of Taunton, 200 Mass. 252, 258, 86 N.E. 313;Gardner v. Lowell, 221 Mass. 150, 153, 108 N.E. 937;Bailen v. Assessors of Chelsea, 241 Mass. 411, 414, 135 N.E. 877;Corrigan v. School Committee of New Bedford, 250 Mass. 334, 145 N.E. 530;Rinaldo v. School Committee of Revere, 294 Mass. 167, 1 N.E.2d 37;Houghton v. School Committee of Somerville, 306 Mass. 542, 28 N.E.2d 1001. The statute explicitly recognizes the right of a licensee to a notice, and to an opportunity to be heard upon the cause assigned in the notice upon which the respondents proposed to proceed. The power of the board to proceed is measured by the statute; compliance with it was essential, if the action of the board was to be valid. Tucker v. Boston, 223 Mass. 478, 112 N.E. 90;Thomas v. Municipal Council of Lowell, 227 Mass. 116, 116 N.E. 497;Stiles v. Municipal Council of Lowell, 233 Mass. 174, 123 N.E. 615, 4 A.L.R. 1365. The function of the respondent board in passing upon the revocation of a license is therefore of a quasi judicial character. Ham v. Boston Board of Police, 142 Mass. 90, 7 N.E. 540;McCarthy v. Emerson, 202 Mass. 352, 88 N.E. 668;Driscoll v. Mayor of Somerville, 213 Mass. 493, 100 N.E. 640;Swan v. Justices of the Superior Court, 222 Mass. 542, 111 N.E. 386;Murphy v. Casey, 300 Mass. 232, 15 N.E.2d 268.

One of the prerequisites to the exercise of the statutory power is that notice setting forth the grounds upon which the respondent board intends to proceed must be given to the licensee. While it is the initial step in the procedural process required by the statute, yet it is not a matter of procedure alone but one of substantive right. Stiles v. Municipal Council of Lowell, 233 Mass. 174, 123 N.E. 615, 4 A.L.R. 1365,McKenna v. White, 287 Mass. 495, 192 N.E. 84. The notice need not be drafted with the certainty of a criminal pleading, Commonwealth v. Bearce, 150 Mass. 389, 23 N.E. 99;Mayor of Medford v. Judge of District Court, 249 Mass. 465, 144 N.E. 397;Matter of Mayberry, 295 Mass. 155, 160, 161, 3 N.E.2d 248, 105 A.L.R. 976, but due regard must be had to the nature of the proceeding and the character of the rights that may be affected. In re Wood & Henderson, 210 U.S. 246, 28 S.Ct. 621, 52 L.Ed. 1046;Missouri v. North, 271 U.S. 40, 46 S.Ct. 384, 70 L.Ed. 818;Grandview Dairy, Inc. v. Baldwin, 239 App.Div. 640, 269 N.Y.S. 116;Silverstein v. Mealey, 259 App.Div. 854, 19 N.Y.S.2d 730;State v. Becker, 326 Mo. 1193,34 S.W.2d 27;Dyment v. Board of Medical Examiners, 57 Cal.App. 260, 265, 207 P. 409;Abrams v. Daugherty, 60 Cal.App. 297, 303, 212 P. 942;Klafter v. Board of Examiners of Architects, 259 Ill. 15, 23, 102 N.E. 193, 46 L.R.A.,N.S., 532, Ann.Cas. 1914B, 1221; Braucher v. Board of Examiners of Architects, 209 Ill.App. 455. The grounds upon which it is proposed to proceed should be stated with reasonable particularity so that the notice is sufficiently definite fairly to appraise the licensee of the charge which he must be prepared to meet. Ham v. Boston Board of Police, 142 Mass. 90, 95, 7 N.E. 540;Boston Bar Association v. Greenhood, 168 Mass. 169, 184, 46 N.E. 568;Stiles v. Municipal Council of Lowell, 229 Mass. 208, 210, 118 N.E. 347;Graves v. School Committee of Wellesley, 299 Mass. 80, 85, 96,12 N.E.2d 176;Morgan v. United States, 304 U.S. 1, 18, 19, 58 S.Ct. 773, 999,82 L.Ed. 1129;National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 349, 58 S.Ct. 904, 82 L.Ed. 1381. Mere defects in matters of form will not invalidate a notice if enough remains for the person whose rights may be affected reasonably to understand the substance and the nature of the ground upon which he is called upon to answer. Such a notice must comply with the requirements of natural justice and of fair play, and must, in conjunction with the hearing, be sufficient to accomplish substantial justice in accordance with the general aim of similar statutory proceedings. McCarthy v. Emerson, 202 Mass. 352, 88 N.E. 668;Davis v. Board of Registration in Medicine, 251 Mass. 283, 146 N.E. 708;Whitney v. Judge of the District Court, 271 Mass. 448, 171 N.E. 648;Railroad Commission of California v. Pacific Gas & Electric Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319;Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656.


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