Johnson Products, Inc. v. City Council of Medford

• Decision Date: 17 January 1968
• Citation: 353 Mass. 540,233 N.E.2d 316
• Parties: JOHNSON PRODUCTS, INC. v. CITY COUNCIL OF MEDFORD (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 316

233 N.E.2d 316

353 Mass. 540

JOHNSON PRODUCTS, INC. v. CITY COUNCIL OF MEDFORD (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 5, 1967.

Decided Jan. 17, 1968.

David Berman, Medford, for Johnson Products, Inc.

Mark E. Gallagher, Jr., City Sol., for City Council of Medford and another.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, and SPIEGEL, JJ.

KIRK, Justice.

The two cases which have been argued together arise from a single dispute. Johnson Products, Inc. (Johnson) an operator of retail gasoline outlets at several locations in Massachusetts and elsewhere in New England, applied on January 28, 1966, to the city council of Medford (the council) for a license to build and operate a 'gasoline island,' as it calls it outlets, at the Fellsway Shopping Center in Medford. G.L. c. 148, § 13. Following a hearing by the council on February 16, 1966, the application was denied by unanimous vote.

On June 8, 1966, Johnson filed a petition for a writ of certiorari against the council. On the same day it filed a bill for declaratory relief against the city and the council under G.L. c. 231A, § 1. In each case the result was adverse to Johnson.

1. We consider first the petition for a writ of certiorari. The council filed a demurrer to the petition. After hearing, the demurrer was sustained, and an order for judgment was entered that the petition be dismissed. Johnson appealed.

At the outset we make a few general observations. The special function of a petition for a writ of certiorari has been frequently stated. Tracht v. County Com'rs of Worcester, 318 Mass. 681, 686, 63 N.E.2d 561, 563. ² Although the peculiar office of the petition is to get a return from the respondent rather than an answer, By-field v. City of Newton, 247 Mass. 46, 52, 141 N.E. 658, the petition may be challenged by demurrer and when so challenged the petition must show on its face that the petitioner is entitled to the return. Colantuoni v. Selectmen of Belmont, 326 Mass. 778, 779, 96 N.E.2d 870. No intendment is made in favor of the pleader. Sher v. Perlman, 324 Mass. 390, 391--392, 86 N.E.2d 902; Joyce v. Hickey, 337 Mass. 118, 121--123, 147 N.E.2d 187. A decision sustaining generally a demurrer to a petition for a writ of certiorari will be upheld 'if any ground assigned is sufficient to show that the petition * * * is defective.' Lucia v. Water & Sewer Com'rs of Medford, 332 Mass. 468, 470, 125 N.E.2d 776, 777.

The council's demurrer assigned four grounds (see G.L. c. 231, § 16) which stated, in summary, that the petition: (1) recites extraneous matters to which a response is impossible; (2) states generalities of fact and conclusions of law to support allegations of arbitrariness and unlawful conduct; (3) is multifarious in attempting to raise issues of constitutionality and improper exercise of discretion; and (4) makes '(n)o claim * * * as to the matter of law apparent on the record.' Only these assigned grounds may be considered in ruling on the demurrer. Inhabitants of Washington v. Eames, 6 Allen 417, 419--420. Train v. Boston Disinfecting Co., 144 Mass. 523, 525, 11 N.E. 929; Sullivan v. Judges of Superior Court, 271 Mass. 435, 436, 171 N.E. 490.

The sustaining of the demurrer was not error. The petition fails to allege clearly error of law. Stated otherwise, whatever error of law was intended to be states is so ineptly phrased or so obscured by other allegations as not to be discernible. See Sears v. Treasurer & Receiver General, 327 Mass. 310, 314, 98 N.E.2d 621. One paragraph states that Johnson has never been cited criminally or civilly in its business; another argues inter alia that the granting of the license would not increase crease the hazard of fire or explosion near the locus, and that 'there is no reason in law or in fact for having denied it.' Still another paragraph alleges that 'all rational and credible evidence tended to show that the granting of the * * * (license) is consistent with the public health, safety and welfare.' The foregoing allegations, it seems to us, relate not to error of law, but fall within grounds 1 and 2 of the demurrer.

The petition further alleges that 'No sworn evidence was presented to the Council * * * which would have justified denial' (emphasis supplied). We are unable to discern the intended meaning of the words 'sworn evidence' in the context of the petition or of the case. If the intended meaning is that testimony under oath is necessary to justify denial of a license, the answer is that we are aware of no such requirement and the petitioner points to none. If the intended meaning is that affidavits must be submitted the answer is the same. Whatever the intended meaning of the term may be, a local licensing authority under G.L. c. 148, § 13 is not so closely circumscribed as the petition seems to allege in determining whether a license should issue or be withheld. A view, exhibits, and matters of common knowledge in the community, such as hours of heavy traffic, are not 'sworn evidence' and yet could properly be considered by the council in arriving at a decision. The 'somewhat wide discretion' given to the licensing authority 'extends beyond the mere question of fire risk and involves other considerations affecting the public interests.' Scudder v. Board of Selectmen of Sandwich, 309 Mass. 373, 376, 34 N.E.2d 708, 710; Kidder v. City Council of Brockton, 329 Mass. 288, 290, 107 N.E.2d 774. The Administrative Procedure Act, G.L. c. 30A, is not applicable. Compare Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 204 N.E.2d 504. The implication in the petition that somehow the burden is on the council to justify the denial of the license is untenable. So, too, is the innuendo that the council was under a duty to state reasons for the denial. See Cefalo v. Board of Appeal of Boston, 332 Mass. 178, 181, 124 N.E.2d 247; Adams v. Adams, 331 Mass. 354, 358, 118 N.E.2d 759.

In summary the petition is a complaint that Johnson lost when it should have won the decision, but it cites no error of law made by the council in arriving at the decision. The demurrer was properly sustained.

2. We turn to the bill for declaratory relief. In substance, the averments of the bill were the same as those in the petition for a writ of certiorari. The court was asked to declare that the license ought to have been granted and to enter a decree to enforce Johnson's 'rights.' A demurrer to the bill was filed, and, after hearing, overruled by the same judge who sustained the demurrer in the companion case. No appeal was taken from the decree overruling the demurrer. The case was tried before another judge, who entered a decree that no modification of the council's decision was required. It is obvious from a reading of the record that the trial judge, despite the order overruling the demurrer, had serious misgivings as to the efficacy and propriety of the bill for declaratory relief. We think his misgivings were well founded.

Consideration of the question requires reference to the discussion by Qua, C.J. in Butler v. Town of East Bridge-water, 330 Mass. 33, 110 N.E.2d 922, brought under G.L. c. 231A, § 1. The principal issues in the Butler case were the constitutionality of an enabling act for regulating the stripping of topsoil and the validity and interpretation of the by-law adopted by the town under the statute. The controversy was clearly within the purview of G.L. c. 231A, § 1. 330 Mass. 33, 34--38, 110 N.E.2d 922. Another issue in the case was the...