Mosey Cafe, Inc. v. Licensing Board For the City of Boston

• Decision Date: 05 December 1958
• Citation: 154 N.E.2d 585,338 Mass. 199
• Parties: MOSEY CAFE, Inc. v. LICENSING BOARD FOR the CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 585

154 N.E.2d 585

338 Mass. 199

MOSEY CAFE, Inc. v. LICENSING BOARD FOR the CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 5, 1958.

Hirsh Freed, Boston, Arthur Sherman and Herbert Baer, Boston, for plaintiff.

Joseph H. Elcock, Jr., Asst. Atty. Gen., for respondent Commissioner of Public Safety.

William H. Kerr, Boston, for respondent, Licensing Bd. of Boston, et al.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

WILKINS, Chief Justice.

This bill in equity for a declaratory decree under G.L. c. 231A is reserved and reported without decision upon the pleadings and an agreement as to all the material facts. G.L. c. 214, § 31. The broad questions to be determined are whether G.L. c. 140, § 183A, and Revised Ordinances of Boston (1947) c. 40A, § 1, cl. 92, are inapplicable or void as to the plaintiff in so far as they purport to impose licensing requirements and the payment of license fees for furnishing public entertainment on weekdays solely through 'music provided by mechanical or electrical means' by the use of 'juke boxes,' television, or radio. The defendants are the city and the licensing board.

The plaintiff, a Massachusetts corporation, has a place of business known as 'Ball and Bat Cafe' at 565 Tremont Street, Boston. It has been licensed by the board as a common victualler under G.L. c. 140, § 2, and as a common victualler it has been further licensed by the board under G.L. c. 138, § 12, as amended, to sell, on all days of the week, all alcoholic beverages for consumption on its premises. The licenses for 1958 are evidenced by a combination license issued on December 31, 1957, upon payment of a fee of $45 under the Revised Ordinances of Boston (1947) c. 40A, § 1, cl. 68, for the common victualler's license and a fee of $1,400 under G.L. c. 138, § 12, for the alcoholic beverages license.

The plaintiff's premises have been maintained in a safe and proper manner, and have been inspected from time to time by the building department of the city, which has certified to their safety for occupancy as a restaurant with a seating capacity of 105. In the restaurant food and drink are sold for cash to members of the general public without admission fee, cover charge, or mimimum charge.

The plaintiff maintains two television sets and a radio set by which on weekdays it makes regularly broadcasted programs available to customers without any payment or deposit of money over and above their payment for food, drink, or other refreshment sold to them for cash. It also maintains a coin-operated 'juke box,' which is a phonograph, with a capacity for one hundred 'two play' records. This is an automatic electrical device which furnishes recorded music, and through its use on lawful hours on weekdays the plaintiff makes available to customers 'musical entertainment provided by mechanical or electrical means' on a voluntary basis according to their own selection upon deposit of a coin, but without other payment or deposit of money over and above their payment for food, drink, or other refreshment sold to them for cash.

The plaintiff contends that it has the right to furnish to customers, at lawful times and in a proper manner and in compliance with all other pertinent laws, public entertainment on weekdays through the use of television, radio, and 'music provided by mechanical or electrical means' without obtaining any license pursuant to G.L. c. 140, § 183A, or paying any license fee under cl. 92 of the ordinance.

General Laws c. 140, § 183A, as amended by St.1936, c. 71, § 1, provides: 'No innholder, common victualler or person owning, managing or controlling a cafe, restaurant or other eating or drinking establishment shall, as a part of his usual business, offer to view, set up, set on foot, maintain or carry on a concert, dance, exhibition, cabaret or public show of any description at which food or drink or other refreshment is sold for cash, or in connection with which, after free admission, music or other amusement is provided or furnished upon payment or deposit of money, either as a cover charge or in payment for food, drink or other refreshment, unless and until a license therefor, to be exercised on week days only, has been issued by the licensing authorities. * * * Such licenses, unless sooner revoked, shall expire on December thirty-first of each year.'

Chapter 40A, § 1, provides in part: 'Fees and charges are hereby fixed under Chapter 222 of the acts of 1949 as follows: * * * (92) Entertainment License. The fee for a license granted by the licensing board under section 183A of chapter 140 of the General Laws (including a license so granted to an innholder or common victualler) shall be $100.00; provided, that in cases where the entertainment is solely through the use of television, radio, and music provided by mechanical or electrical means, the fee shall be $50.00; and provided also, that in case where the entertainment is solely provided by not exceeding four instrumentalists, the fee shall be $75.00.'

On December 30, 1957, the board issued to the plaintiff upon the payment of $50 a weekday entertainment license under cl. 92 for radio, phonograph, and television for the year 1958.

1. There is first presented the question whether the plaintiff's activities fall within § 183A. The initial problem of construction is whether 'in connection with which' refers to 'usual business' or to 'concert, dance, exhibition, cabaret or public show of any description.' We think that the reference is to the latter. In the interests of brevity we refrain from spelling out the defendants' detailed argument to the contrary. Our interpretation means that in order to sustain the board's authority, the plaintiff's activities must constitute a 'public show of any description,' inasmuch as the other words, 'concert, dance, exhibition, cabaret,' are obviously inapplicable. We do not agree with the plaintiff that § 183A, which mentions no hours, is only a 'night clud' statute, and confined to 'live' entertainment. We believe that the statutory purpose is to regulate anyone who provides entertainment in connection with the business of furnishing 'food or drink or other refreshment.' Granting that television might have been unknown when § 183A was drafted, the very broad language, 'public show of any description,' must be taken to comprehend new modes of entertainment . See Commonwealth v. Welosky, 276 Mass. 398, 403, 177 N.E. 656. We, therefore, do not accept the plaintiff's argument that § 183A does not include a 'juke box' because of the omission of the specific, but narrower phrase found in § 181, 'amusement * * * furnished upon a deposit of money in a coin controlled apparatus.' The greater phrase used includes the lesser. Further detailed discussion of the arguments respecting this aspect of statutory interpretation would profit our jurisprudence nothing.

2. Another question of construction is presented by the last sentence of § 183A, which provides that 'no fee shall be chargeable' for the license thereby required 'to a person who, for the period covered by such license, is also licensed under section two.' General Laws c. 140, § 2, reads in part: 'Licensing authorities may grant licenses to persons to be innholders or common victuallers.' The plaintiff argues that because it is already licensed as a common victualler under c. 40A, § 1, cl. 68, it cannot be made to acquire an entertainment license under cl. 92, which expressly refers to § 183A.

The answer of this argument is found in St.1949, c. 222, entitled 'An Act empowering the city of Boston to fix by ordinance certain fees and charges.' The said act provides in § 1, 'The city of Boston may from time to time, by ordinance, fix the fees for all licenses and permits granted under the authority of statutes where the entire proceeds of the fee form part of the income of the city,' with exceptions not presently material. Section 3 reads: 'A fee or charge fixed by ordinance under this act shall be deemed to apply notwithstanding any general or special law heretofore passed fixing a different fee or charge or imposing any limitation on the amount thereof or designating a particular board or officer to fix said amount. * * * No general or special law hereafter passed shall, in the absence of express and explicit mention therein of this act, be construed to repeal this act in whole or in part or to affect in any way any fee or charge theretofore or thereafter fixed by ordinance under this act.'

The Legislature in c. 222 showed an intent to empower the city to fix certain license fees, such as the one before us, and to make c. 222 the sole source of power unless express mention of the act should be made in later legislation. The language of § 3 must be taken to wipe the slate clean of prior limitations even though expressed in the formally prohibitory words, 'no fee shall be chargeable.'

3. The plaintiff raises constitutional questions. In so doing it asserts that § 183A 'is clearly a censorship statute,' and that 's 183A and cl. 92 do not regulate, in any respect or to any extent, the place or time or manner of, nor the machine or device employed in, such 'entertainment,' but directly and immediately and exclusively apply their force to the actual content of the...