Newcomb v. Aldermen of Holyoke

• Decision Date: 06 June 1930
• Citation: 271 Mass. 565,171 N.E. 826
• Parties: NEWCOMB v. ALDERMEN OF HOLYOKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 565

171 N.E. 826

NEWCOMB

v.ALDERMEN OF HOLYOKE.

Supreme Judicial Court of Massachusetts, Hampden.

June 6, 1930.

Exceptions from Supreme Judicial Court, Hampden County.

Petition for certiorari by Robert E. Newcomb against the Aldermen of Holyoke. Rulings were made adverse to petitioner, and he brings exceptions.

Exceptions overruled.

D. H. Keedy, of Springfield, and J. F. Hartnett, of Holyoke, for petitioner.

B. F. Evarts, of Holyoke, for respondents.

RUGG, C. J.

This is a petition for a writ of certiorari. The respondents made a return setting forth over their official signatures the proceedings had by them touching the matters alleged in the petition. The pleadings were not framed to raise issues of fact. The petitioner has not questioned the sufficiency, fullness or completeness of the return. He has taken no steps to have it further extended. In these circumstances averments of the petition not shown by the return of the respondents are to be disregarded. The return is to be accepted as true concerning all matters within the jurisdiction of the respondents. Ward v. Board of Aldermen of Newton, 181 Mass. 432, 63 N. E. 1064;Swan v. Justices of the Superior Court, 222 Mass. 542, 544-546, 111 N. E. 386;Byfield v. Newton, 247 Mass. 46, 53, 141 N. E. 658. In this state of the record, the scope of the present inquiry is whether upon the face of the return there are apparent errors of law of a substantial nature appealing to sound judicial discretion as requiring relief in order to prevent injustice. Mayor of Medford v. Judge of the District Court, 249 Mass. 465, 468, 144 N. E. 397;Prusik v. Board of Appeal, 262 Mass. 451, 453, 160 N. E. 312;Selectmen of Wakefield v. Judge of the District Court, 262 Mass. 477, 160 N. E. 427;Whitney v. Judge of the District Court (Mass.) 171 N. E. 648.

The complaint of the petitioner is that a license authorizing the storage and sale of gasoline on his land was revoked unlawfully by the respondents. The return of the respondents shows that the petitioner on May 15, 1928, after a contested hearing, was granted a license to keep, store, use and sell gasoline and to conduct and maintain a garage on specified premises. On May 25, 1928, a resolution was adopted that the members of the board of aldermen were of opinion that the State fire marshal should in the exercise of such discretionary power as was vested in him refuse the granting of a permit to the petitioner for the erection of the gasoline station and the conduct of a garage on the specified premises. On July 2, 1928, a petition was filed with the respondents by the Congregation Sons of Zion, praying for the revocation of the license granted to the petitioner. On this petition it was voted to grant a hearing on September 4, 1928, and that copy of the order be sent to the petitioner and to the Congregation Sons of Zion. Hearing was held accordingly, at which a number of persons expressed their views on the merits of the matter including the attorney for the petitioner and several in behalf of the congregation. At the conclusion of the hearing an order was adopted wherein it was declared after some preliminary recitals that the license granted to the petitioner on May 15 be ‘revoked for cause shown.’

The case was heard upon this state of the pleadings. The single justice denied the petitioner's requests for rulings, ruled that the petitioner was not entitled to the writ, and ordered the petition dismissed. The correctness of these rulings is presented by the exceptions of the petitioner.

The first request that the cause for revocation of the license is insufficient in law was denied rightly. That cause is not disclosed by the return. The petitioner made no attempt to have the record of the respondents extended so as to state that cause at length. Swan v. Justices of Superior Court, 222 Mass. 542, 545, 546, 111 N. E. 386. The statute does not require that the cause be recited on any public record. It is simply provided by G. L. c. 148, § 14 (not affected in this particular by subsequent amendments) that a license such as here was granted ‘may be revoked for cause, after notice and a hearing given to such owner or occupant.’ No contention is made that such notice and hearing were not given. Every presumption exists in favor of the honesty and sufficiency of the motives actuating public officers in...