Largess v. Nore's, Inc.

• Decision Date: 17 November 1960
• Citation: 341 Mass. 438,170 N.E.2d 361
• Parties: Robert S. LARGESS et al. v. NORE'S, INC. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 361

170 N.E.2d 361

341 Mass. 438

Robert S. LARGESS et al. v. NORE'S, INC. et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 27, 1960.

Decided Nov. 17, 1960.

James W. Kelleher, Boston, for plaintiffs.

Seymour Weinstein, Worcester, for defendants.

Richard H. Gens, Asst. Atty. Gen., for Alcholic Beverages Control Commission.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, Jj

WILLIAMS, Justice.

This is a bill in equity brought under G.L. c. 139, § 16A, by more than ten legal voters of the city of Worcester to abate a nuisance at 393 Chandler Street resulting from the alleged unlicensed maintenance of a package store for the sale of alcoholic beverages by the defendant Whitman's Model Creamery, Inc., the owner, and the defendant Nore's, Inc., the occupant of the premises. The Alcoholic Beverages Control Commission has been allowed to intervene. The parties filed an agreement as to the material facts and a judge of the Superior Court at their request reported the case without decision upon the bill, the answers, and the statement of agreed facts to this court.

These agreed facts are as follows: 'Nore's, Inc., is a Massachusetts corporation which has held a package store license for the sale of all alcoholic beverages not to be consumed on the premises since 1935, which liquor license has been renewed from year to year since then. The location provided for in the * * * license as of January 1, 1959, was 155-159-161 Water Street in the City of Worcester. On December 28, 1959, * * * Nore's, Inc., applied to the License Commission for the City of Worcester for transfer of said location to 393 Chandler Street in said Worcester, which application, following hearing, was denied by said License Commission * * *. Within five days thereafter the defendant, Nore's, Inc., did appeal to the Alcoholic Beverages Control Commission (hereafter referred to as 'Commission') in accordance with the provisions of § 23, c. 138 of the General Laws. On March 1, 1960, following the hearing held by the Commission upon such appeal, due notice having been given to all interested parties, the Commission did render a decision * * * wherein the Commission decided Nore's, Inc., should be permitted to transfer its license to said 393 Chandler Street and did remand the application to the Board of License Commissioners for the City of Worcester, '* * * for further action as recommended in this decision, said action to be taken within five days after receipt of this decision.'

'* * * The License Commissioners for the City of Worcester failed to take any action in accordance with the aforesaid decision of said Commission within five days after the receipt by the License Commissioners * * * of the Commission's decision. On March 11, 1960, * * * Nore's, Inc., filed with said Commission a reappeal * * *. The Commission, after hearing, due notice being given to all interested parties, rendered a decision affirming its prior decision in this matter and further providing as follows: '* * * we order you, the Board of License Commissioners of Worcester, to approve the transfer, and transfer the license for the sale of all alcoholic beverages, not to be drunk on the premises (G.L. c. 138, § 15) held by Nore's, Inc., from 155-159-161 Water Street to a new location at 393 Chandler Street, Worcester, on or before Tuesday, April 12, 1960. Otherwise this Commission will approve and transfer said license itself.'

'* * * The License Commissioners * * * failed to take any action with respect to said transfer on or before April 12, 1960. On April 13, 1960, said Commission issued to the defendant, Nore's, Inc., a document which reads as follows: 'Alcoholic Beverages Control Commission, This amends and is part of License No. 60-37 issued to Nore's, Inc. (Morton White, Mgr.) 155-159-161 Water Street, Worcester, 1st day of January A.D.1960. Amended Transfer of address of Nore's, Inc., Morton White, Mgr. from 155-159-161 Water Street to 393 Chandler Street, Worcester, this day April 13, 1960. * * *''

The question for decision is whether the commission, after denial by the local licensing board of an application by Nore's, Inc., for a transfer of its license to 393 Chandler Street, legally authorized...