Lincoln v. Hillside Park 'N Shop, Inc.

Decision Date04 May 1976
Citation346 N.E.2d 887,370 Mass. 209
PartiesFrank LINCOLN et al. 1 v. HILLSIDE PARK 'N SHOP, INC., et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Philip J. MacCarthy, Worcester, for Frank Lincoln & Others.

Terence F. Riley, Belmont, for New England Cash Super Market, Inc.

Leonard E. Leboeuf, Webster, for Hillside Park 'N Shop, Inc.

Before REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

In July, 1972, the board of selectmen of the town of Webster (board), as licensing authority (see G.L. c. 138, § 1), issued a license for the sale of wines and malt beverages for off-premises consumption to each of five defendants herein (licensees). On September 5, 1972, the Alcoholic Beverages Control Commission (ABCC) approved the issuance of these licenses over the protest of certain persons who claimed to be affected. Shortly thereafter, the present suit was commenced in the Superior Court. The plaintiffs were 'not less than ten legal voters' of Webster (petitioners) suing under G.L. c. 139, § 16A, to stop the sale of alcoholic beverages by some or all of the licensees as being illegal and a nuisance. They asserted that the licenses were in excess of the number authorized by law (G.L. c. 138, §§ 11, 12, 15, 17), and prayed appropriate injunctive relief.

The judge, interpreting the statutes, held after trial in findings, rulings, and order, adopted as a report of material facts, that the board had been in error: taking account of licenses previously issued, the board was authorized to issue but four of the five licenses. Accordingly, the judge by interlocutory decree ordered the five 'purported licensees' to seek a decision from the board 'as to which four of them are validly licensed.' 3 The board found against N.E.C. Super Market, Inc. (NEC), and the judge then entered a corresponding final decree enjoining NEC and dismissing the bill as to the other four licensees. NEC appeals, asserting procedural objections to the maintenance of the suit; the petitioners appeals, claiming that two more of the licensees should have been enjoined; the four successful licensees, as appellees, urge an interpretation of the statutes that would validate not only their licenses but also NEC's.

Having taken these appeals for review pursuant to G.L. c. 211A, § 10(A), we shall conclude that NEC's procedural objections are untenable, and that the judge's approach in construing the statutes was correct, but because of an ambiguity in the record the case must be remanded for further proceedings.

1. Deferring discussion of the procedural points, which will fail, we go to the merits. At all times relevant to the action, Webster had a population of between 14,000 and 15,000. The town, by voting affirmatively on the first ballot question of G.L. c. 138, § 11, had authorized the sale of all alcoholic beverages. 4 By § 11, this vote legalized the 'retail sale in such . . . town of all alcoholic beverages to be drunk on and off the premises where sold, in accordance with the provisions of this chapter.' Section 12 describes on-premises licenses and § 15 off-premises licenses.

Paragraphs one and two of § 17 contain the critical language, set out in the margin. 5 Paragraph one says that the local authority 'may grant one license under the provisions of section twelve for each population unit of one thousand or additional fraction thereof . . . but may, regardless of population, grant at least fourteen licenses under . . . section twelve. . . .' By this language the permissible number of on-premises licenses, whether for all alcoholic beverages or for wines and malt beverages only, 6 would be fifteen for Webster. The same paragraph goes on to say that the local authority 'may also grant one license under the provisions of section fifteen for each population unit of five thousand or additional fraction thereof, but may, regardless of population, grant at least two licenses under . . . section fifteen.' Three off-premises licenses could be awarded in Webster under this wording. There is no dispute as to these interpretations.

Paragraph two of § 17 adds a complication. It says: 'In addition to the number of licenses otherwise authorized to be granted by the provisions of this section,' the local authority of a town which has voted to authorize the sale of all alcoholic beverages 'may grant not more than one license for the sale of wines or malt beverages only, or both, for each population unit of five thousand or fraction thereof,' but with the proviso that in such a town the authority 'may grant at least five additional licenses for the sale of such beverages, irrespective of its population.' It is to be noted that this paragraph, unlike paragraph one, does not distinguish between on- and off-premises licenses.

The question of interpretation posed by paragraph two is whether the five licenses spoken of in the proviso are cumulative to the licenses based on population units mentioned in the preceding clause, or, to the contrary, substitutional in the particular situation where the population units would themselves authorize less than five. The question became a practical one in Webster through the following actions of the board. Before the July, 1972, votes to issue licenses to the defendants, the board had issued three all alcoholic beverages licenses for off-premises consumption, thus filling the Webster quota for off-premises licenses under paragraph one of § 17. The board had also issued previously three wines and malt beverages licenses, of which one was for off-premises consumption, and two for on-premises consumption. The record does not disclose whether the latter, two licenses were issued as part of the town's quota for § 12 licenses under paragraph one of § 17 or under the town's authority to issue 'additional' wines and malt beverages licenses under paragraph two. Then came the issuance of the five wines and malt beverages licenses for off-premises consumption to the five defendants.

On the cumulative view (urged by the licensees who are appellees here), paragraph two authorized eight wines and malt beverages licenses which could be for on-premises or off-premises consumption; on the substitutional view, five were so authorized.

We agree with the judge below in preferring the substitutional reading. The word 'additional,' as used in the 'provided' clause of paragraph two, refers to licenses additional to those authorized by paragraph one, and not to those mentioned in the preceding clause of paragraph two dealing with population units. 'Additional' in the 'provided' clause is merely repetitive of the thought conveyed by the phrase '(i)n addition' with which paragraph two begins. This allows a symmetrical and orderly reading of both paragraphs. By such a reading the three 'at least' phrases are all given the same interpretation: they speak of a minimal allowance of licenses in towns like Webster which, because of their population, would not otherwise qualify for so many licenses. The presumption--that '(w)here the Legislature uses the same words in several sections which concern the same subject matter, the words 'must be presumed to have been used with the same meaning in each section. " (Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 188--189, 248 N.E.2d 500, 504 (1969), quoting from Liddell v. Standard Accident Ins. Co., 283 Mass. 340, 346, 187 N.E. 39 (1933))--is not rebutted here by the slight difficulty introduced by the use of 'additional' in the proviso.

On the substitutional view, only five paragraph two wines and malt beverages licenses--not eight, as on a cumulative basis--were authorized to be issued in addition to the permissible licenses under paragraph one. But six off-premises licenses under paragraph two were in fact issued--one more than authorized, as the judge held; for after issuance of the five licenses approved by the ABCC on September 5, there were nine off-premises licenses, six more than allowed under paragraph one, and all six for wines and malt beverages. So one of those six licenses was invalid. It is possible, however, that two more of those licenses should be invalidated. This depends on whether the two on-premises wines and malt beverages licenses, as to which the record does not supply adequate information, were issued within the quota of fifteen on-premises licenses authorized by paragraph one, or must be attributed to paragraph two. Therefore the case must be remanded for further proceedings in which the necessary facts can be ascertained. 7

2. (a) NEC's first procedural objection is that a ten voters' action under G.L. c. 139, § 16A, will not lie; that steps should rather have been taken to review under the State Administrative Procedure Act, G.L. c. 30A, § 14, the approval of the five licenses by the ABCC.

Section 16A, reproduced in the margin, 8 is definitely available. As we said in Cleary v. Cardullo's, Inc., 347 Mass. 337, 351, 198 N.E.2d 281, 291 (1964), this statute 'authorize(s) bills in equity to enjoin as a nuisance the illegal sale of alcoholic beverages. Whether a license was lawfully issued may be tested in that manner.' And regarding the proper approach to the atatute: 'the remedy given to public officials and to taxpayers . . . is to be construed broadly.' Any voters of the town may qualify as plaintiffs under § 16A, whereas a person must be 'substantially affected' 9 to oppose the issuance of a license by the ABCC; and the interest vindicated in the § 16A action is different from that at stake before the ABCC. Thus the procedures run on different tracks. Further, the objection taken by NEC, such as it is, is analogous to a defense of res judicata, which must be affirmatively alleged by answer if it is to be relied on. Fabrizio v. U.S. Susuki Motor Corp., 362 Mass. 873, 873--874, 289 N.E.2d 897 (1972). Hacker v. Beck, 325 Mass. 594, 598, 91 N.E.2d 832 (1950). That was not done. Nor...

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  • Lopes v. Commonwealth, SJC-09188 (MA 7/9/2004)
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 9, 2004
    ...argument in the plaintiffs' appellate brief was not raised in the trial court, so we do not consider it.9 See Lincoln v. Hillside Park 'N Shop, Inc., 370 Mass. 209, 216 (1976). We further note that the relief the plaintiffs seek, declaratory and injunctive relief to prevent the Commonwealth......
  • Lopes v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
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    ...argument in the plaintiffs' appellate brief was not raised in the trial court, so we do not consider it.9 See Lincoln v. Hillside Park 'N Shop, Inc., 370 Mass. 209, 216 (1976). We further note that the relief the plaintiffs seek — declaratory and injunctive relief to prevent the Commonwealt......
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    ...at the trial level need not be considered on appeal. See, e.g., Lincoln v. Hillside Park 'N Shop, Inc., --- Mass. ---, ---, a 346 N.E.2d 887 (1976); Green v. Board of Appeal of Norwood, 358 Mass. 253, 257, 263 N.E.2d 423 (1970); Henchey v. Cox, 348 Mass. 742, 747, 205 N.E.2d 715 (1965); Fos......
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