Jaffarian v. Mayor of Somerville

• Decision Date: 03 April 1931
• Citation: 175 N.E. 639,275 Mass. 264
• Parties: JAFFARIAN et al. v. MAYOR OF SOMERVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 264

175 N.E. 639

JAFFARIAN et al.

v.MAYOR OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

April 3, 1931.

Exceptions from Supreme Judicial Court, Middlesex County; John C. Crosby, Judge.

Proceeding by Edward Jaffarian and others for a writ of mandamus to John J. Murphy, Mayor of Somerville. Peremptory writ granted, petitioners' and respondent's bills of exceptions dismissed, and petitioners bring exceptions.

Exceptions sustained.

See also 175 N. E. 641.J. E. Hannigan and F. R. Mullin, both of Boston, for petitioners.

D. J. Kelley, of Boston, for respondent.

RUGG, C. J.

The petitioners seek in this proceeding for mandamus to compel the respondent, in his capacity as mayor of the city of Somerville, to investigate impartially the application of the petitioners for a license for the operation of a miniature golf course on their premises described in the petition. An auditor was appointed who found that the respondent did not act in good faith but acted most arbitrarily and capriciously in refusing to grant the license. At the hearing before the single justice the facts reported by the auditor in substance were found to be true, and it was ordered that a peremptory writ be issued. The petitioners and respondent excepted to the findings and rulings and each filed a bill of exceptions, neither of which has been allowed. After the thirty-first day of December, 1930, the respondent filed a motion to dismiss the petitioners' exceptions on the ground that the questions raised by the petition had become moot. At the hearing upon that motion the single justice found that it ‘was, and is, the uniform practice, and a rule of the mayor [of Somerville], for all licenses for the maintenance of theatres and amusements to expire on December 31 of the year in which they were issued. The printed forms used for all such licenses contain no provision for the term for which they are to remain in force.’ It was further found that this practice was valid and binding upon the petitioners. The application of the petitioners was made under G. L. c. 140, § 181, which provides that, ‘The mayor or selectmen may * * * grant, upon such terms and conditions as they deem reasonable, a license for * * * public amusements and exhibitions of every description. * * *’ Upon these facts and findings it was ruled that under the application made by the petitioners in July, 1930, the license could not properly be issued to them after December 31 of that year, and, since ‘the questions raised by the petition * * * have become moot,’ it was ordered that both bills of exceptions be dismissed.

A necessary consequence of this ruling, if sound, would be that the petition itself must be dismissed.

The finding of fact, to the effect that there was a valid binding practice and rule, cannot be pronounced erroneous. The evidence on which it was based is not reported. The definite finding that the practice was binding upon the petitioners imports that the usage was so widespread and notorious that it bound the petitioners or that their attention was seasonably directed to such rule. Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656;Conahan v. Fisher, 233 Mass. 234, 240, 241, 124 N. E. 13.

It is plain from the facts found concerning the attitude...