Liggett Drug Co. v. Bd. of License Com'rs of City of North Adams

• Decision Date: 16 November 1936
• Parties: LIGGETT DRUG CO., Inc., et al. v. BOARD OF LICENSE COM'RS OF CITY OF NORTH ADAMS (two cases). J. J. NEWBERRY CO. v. SAME (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 41

4 N.E.2d 628

LIGGETT DRUG CO., Inc., et al.

v.BOARD OF LICENSE COM'RS OF CITY OF NORTH ADAMS (two cases).

J. J. NEWBERRY CO.

v.SAME (two cases).

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 16, 1936.

Exceptions from Supreme Judicial Court, Berkshire County.

Proceedings by the Liggett Drug Company, Incorporated, and the J. J. Newberry Company for writs of mandamus to require the Board of License Commissioners of the City of North Adams to issue to petitioners licenses as common victuallers, and suits in equity by the same parties to enjoin the Board and another from interfering with the petitioners' business as common victuallers. The petitions were dismissed by order of a single justice and petitioners bring exceptions, and questions raised by demurrers interposed in the suits in equity were reported without decision.

Exceptions overruled, and in each suit in equity, bills dismissed.W. T. Snow and C. S. Maddock, both of Boston, for plaintiffs.

P. J. Ashe and W. F. Barrington, both of North Adams, for defendants.

RUGG, Chief Justice.

Liggett Drug Company, Inc., and J. J. Newberry Company, corporations organized under the laws of Delaware and for convenience called petitioners, each brought a petition for a writ of mandamus and a suit in equity against the three members of the public board constituting the ‘licensing authorities' of the city of North Adams as these words are fefined in G.L.(Ter.Ed.) c. 140, § 1, and hereafter called respondents. All four proceedings relate to applications by the petitioners for licenses as common victuallers in the city of North Adams for 1936. Each petitioner for the writ of mandamus seeks to have the respondents directed to issue to it a license as a common victualler for 1936. Each petitioner as plaintiff in its suit in equity seeks to have the respondents, with whom the chief of police of North Adams is joined as a party defendant, enjoined from enforcing against it the provisions of G.L.(Ter.Ed.) c. 140, or interfering with the petitioner's business as a common victualler, on the ground that said chapter 140 is unconstitutional. The proceedings arise out of the refusal of the respondents to grant to each petitioner a license as a common victualler in North Adams for 1936. The respondents filed in substance the same answer to each petitioner for a writ of mandamus. These petitions were heard upon oral testimony and other evidence by a single justice, who, subject to the exception of each petitioner, denied certain requests for rulings presented by each petitioner and made certain rulings and dismissed each petition on the merits. The respondents demurred to each bill in equity. At the request of the parties, the questions raised by the demurrer swere reported without decision. The inherent authority of a justice of this court to make such report cannot be doubted. Terry v. Brightman, 129 Mass. 535, 537;Campbell v. Justices of the Superior Court, 187 Mass. 509, 510, 73 N.E. 659,69 L.R.A. 311,2 Ann.Cas. 462;Riverbank Improvement Co. v. Chapman, 224 Mass. 424, 425, 113 N.E. 215.

Each of the petitioners invokes the writ of mandamus to compel the respondents as public officers to issue to it a license as a common victualler. The function of that writ in such circumstances is to compel a board of public officers to perform their official duty according to law. It does not direct what decision shall be made, especially where the element of discretion is involved. Since the respondents have already considered the application of each petitioner and have denied it, each petitioner, in order to prevail, must show that as matter of law it is entitled to such license, or that in refusing to grant the license the respondents have proceeded upon grounds erroneous in law or have otherwise violated legal rights of the petitioner. Crocker v. Justices of the Superior Court, 208 Mass. 162, 164, 165, 94 N.E. 369,21 Ann.Cas. 1061;Knights v. Treasurer & Receiver General, 236 Mass. 336, 337, 128 N.E. 637;Milton v. Auditor of the Commonwealth, 244 Mass. 93, 96, 138 N.E. 589;Madden v. Board of Election Commissioners, 251 Mass. 95, 101, 146 N.E. 280.

The single justice, after hearing, simply dismissed the petitions but made no findings of material facts. The cases come before us on exceptions, which contain all the facts and evidence necessary for the determination of the questions of law raised. The general finding of the single justice in favor of the respondents imports a finding of all the incidental and subsidiary facts necessary to that conclusion permissible on the evidence. Blake v. Hammersley, 288 Mass. 247, 249, 192 N.E. 506. The question presented on this branch of the case is whether the decision of the single justice can be supported as matter of law upon any rational view of the evidence. That decision is not reviewed or revised, but is conclusive if supported by evidence. Andrews v. Registrars of Voters of Easton, 246 Mass. 572, 576, 141 N.E. 507;Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N.E. 803;Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 284, 183 N.E. 730.

Facts are stated in each bill of exceptions in substance as follows: Each of the petitioners was authorized by its charter to carry on its business including the selling and dealing in food, food products and drink. Each had fully complied with all the requirements of the law of this Commonwealth as to the doing of business here by foreign corporations. Each for several years had operated a store upon premises in North Adams leased by it and had been licensed as a common victualler. Each maintained a soda fountain, where it sold soft drinks, ice cream and food, including sandwiches, eggs, meat and fish. Each served meals during the midday hours, and one also served meals from five to seven o'clock in the afternoon. Each owned and used in the conduct of its business as common victualler the ordinary and necessary equipment for preparing, cooking and serving meals, that of one being of the estimated value of $4,000 and that of the other of $2,500. One sold at its store among other things medicines, drugs, toilet articles, rubber goods, cigars and cigarettes. The other was a department store of the five, ten and twenty-five cent variety and sold among other things dry goods and general merchandise. One maintained its kitchen in the basement of its store and the other had enlarged its premises by the addition of a kitchen in the rear of its store. One operated eighty-five stores in this Commonwealth and four hundred fifty in the country; the other operated thirty-one stores in this Commonwealth and four hundred fifty-six ‘all told.’

At no time prior to January 1, 1936, had there been any complaint from the board of health or the respondents with respect to the manner in which the business of either petitioner had been conducted.

The following records of the respondents were in evidence: A vote was passed by the board with respect to the Liggett Drug Company and J. J. Newberry Company on December 14, 1935, reading as follows: ‘And after taking into consideration all of the angles under Chapter 140 and in consideration of the foregoing the following motion was made: That the applications of the Liggett Drug Company and of the J. J. Newberry Co., when received, for a common victualler's license, be denied on the ground that the public good did not require it and that serving of meals in the same room where the sale of merchandise is actively carried on is detrimental to the public health.’ Under the same date was this record: ‘The board feels also that on account of so many common victualler's licenses, consideration should be given to those who do a regular restaurant business and nothing else, and have expensive equipment and pay the city extra money in taxes and license fees, and so forth.’ There was also this notation on the record book of the respondents concerning Liggett Drug Company, Inc., under date of December 14, 1935: ‘Place of service, poor. So-called kitchen in cellar where food was prepared and sent upstairs by dumb lift. Day light very poor.’

One of the respondents testified in part as follows: ‘Prior to denying the license the board had certain information concerning the physical aspects of the two premises. This information was confirmed by an inspection made after the proceeding was commenced. With regard to the Liggett store, the portion of the cellar in which food was prepared was not partitioned off from the storage spaces and the rest of the cellar, and a sink and an open trap near the sink down which waste water came was in the cellar, which waste water emptied into the trap and was carried off through the sewer. * * * The inspection confirmed the opinion of the board with regard to sanitary conditions which were considered unfavorable for the preparation of food. There is no daylight in the cellar and the ventilation was very poor. The character of the food was limited, there was no stock of fresh meats and the store room contained mostly canned material. There was a toilet at the foot of the stairs about five feet from the sewer pipe which ran directly into the drain pipe from the sink. It confirmed the opinion that we had that the sanitary conditions were not right for the preparation of food and that fact was to be considered as a vital fact in coming to that opinion. In addition, the board felt that to serve food in a drug store with all sorts of drugs and possibly poisons and acids and so forth was not proper, where people were coming in and general merchandising was being carried on. The board needed to consider the number of licenses in North Adams because under the conditions of today it felt that the number was seriously handicapping each one of them that was doing business and that it was decreasing their business. The board also felt and took into consideration in reaching its conclusion that Liggett and Newberry were selling means...