Norcisa v. Board of Selectmen of Provincetown

• Citation: 330 N.E.2d 830,368 Mass. 161
• Parties: Pamela NORCISA v. BOARD OF SELECTMEN OF PROVINCETOWN et al. 1
• Decision Date: 19 June 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 830

330 N.E.2d 830

368 Mass. 161

Pamela NORCISA

v. BOARD OF SELECTMEN OF PROVINCETOWN et al. ¹

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Feb. 7, 1975.

Decided June 19, 1975.

Charles L. Field, Boston, for the Board of Selectmen of Provincetown and another.

Maurice M. Goldman, Brewster, for plaintiff, submitted a brief.

Walter H. Mayo, III, Asst. Atty. Gen., and John Hurley, Legal Asst. to the Atty. Gen., for the Attorney General, submitted a memorandum.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

QUIRICO, Justice.

This is an appeal by the defendants, the board of selectmen of Provincetown (selectmen) and their agent, from a decree entered by the judge of the Probate Court for Barnstable County, apparently acting under G.L. c. 231A, §§ 1, 2, and under G.L. c. 215, § 6, as appearing in St.1963, c. 820, § 1, declaring that the plaintiff and her retail clothing business in the town of Provincetown (town) are not within the scope of G.L. c. 101, §§ 1--12, the Transient Vendor Statute, and ordering that the town and its agents, servants, and employees 'are hereby restrained and permanently enjoined from enforcing . . . any of the provisions of Mass. G.L. c. 101, §§ 1--12, against the Petitioner or the retail business she operates.' This appeal was first entered in the Appeals Court and we then transferred it to this court, acting on our own motion. G.L. c. 211A, § 10(A), inserted by St.1972, c. 740, § 1. Prior to the commencement of this suit in equity, a criminal complaint had issued in the Second District Court of Barnstable County charging the plaintiff with violating G.L. c. 101, §§ 6, 8. This criminal complaint was still pending when the decree appealed from issued. The obvious purpose and effect of the decree was to enjoin the pending criminal prosecution. ² We reverse.

The facts apparently relied on by the judge in issuing the final decree were contained in a document signed by attorneys for both the plaintiff and the defendants, entitled 'Agreed Statement of Facts.' It appears from this document that sometime late in 1973 the plaintiff, who was a resident of Provincetown, opened a retail clothing business in that town under the name of The Town Crier Wearhouse. At the time she opened her business, the plaintiff was informed by the agent for the selectmen 'that she would not be able to open and operate her business unless she paid to Provincetown a license fee of two hundred dollars ($200.00), furnished a bond of five hundred dollars ($500.00), to the Commonwealth, and applied for both a state and town Transient Vendor's License, all of the above pursuant to and authorized by G.L. c. 101, § 3.' ³

General Laws c. 101, § 3, ⁴ requires that anyone 'before commencing business in the commonwealth as a transient vendor' shall apply for a State license, good for one year, to do business as a transient vendor, subject to local rules and regulations. With the license application, the applicant must deposit $500 or give a bond in that sum, 'conditioned upon (1) compliance with the provisions of this chapter relative to transient vendors, (2) payment of all fines or penalties incurred by him through violations of such provisions, and (3) payment or satisfaction of any judgment obtained against him in behalf of any creditor whose claim arises in connection with the business done under the licensee's state license and who . . . shall have given due notice of his claim to the director (of standards in the executive office of consumer affairs).' A 'transient vendor' is defined as 'any person, either principal or agent, who engages in a temporary or transient business in the commonwealth selling goods, wares or merchandise, either in one locality or in traveling from place to place.' G.L. c. 101, § 1. 'Temporary or transient business' is further defined as 'any exhibition and sale of goods, wares or merchandise which is carried on in any tent, booth, building or other structure, unless such place is open for business during usual business hours for a period of at least twelve consecutive months.' G.L. c. 101, § 1.

The plaintiff's position as stated in the 'Agreed Statement of Facts' is that she was not a transient vendor at the time the selectmen sought to categorize her as one, that she had not been a transient vendor in the past, and that she would not be a transient vendor in the future. She further asserted that she had performed no acts which could be construed as classifying her as anything except a retailer of clothes, that she intended to conduct her business as a full time retail clothing shop, and that she would take no action inconsistent with these assertions. The plaintiff further claimed that the selectmen refused 'to hold an examination or hearing to determine the relevant and material facts.' The defendants' position, in the court below as well as in their brief here, has been 'that under the terms of the statute petitioner is required to take out a transient vendor's license unless she has been 'open for business during usual business hours for a period of at least twelve consecutive months" (emphasis added). ⁵

The briefs of both parties are replete with assertions and counterassertions regarding the constitutionality of the Transient Vendor Statute on its face and as applied. The plaintiff contends that the statute on its face and as applied to her deprives her of equal protection and due process of law. The defendants, rather confusingly, 'concede that G.L. c. 101 may have facial invalidity or be procedurally deficient in situations such as the one presented here,' but nevertheless assert that 'respondent is confident that it has handled the matter in a way consistent with the intent of the legislature, the provisions of the statutes, the relevant court rulings and in a way wholly consistent with its grant of authority and discretion.' We do not resolve any of these competing contentions because, regardless of how they might be resolved, we would conclude that the judge should not have enjoined the pending criminal prosecution.

At one time, it was common for courts to express the view that an equity court had no 'jurisdiction' to enjoin a criminal prosecution. In In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402 (1888), the court said, at 210, 8 S.Ct. at 487, 'The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors . . .. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offences, . . . is to invade the domain of the courts of common law, or of the executive and administrative department of the government.' To the same effect, see Littleton v. Burgess, 14 Wyo. 173, 178--182, 82 P. 864 (1905).

In this Commonwealth, however, it was early established that courts with general equity powers have the power to restrain criminal prosecutions. In shuman v. Gilbert, 229 Mass. 225, 118 N.E. 254 (1918), for example, this court recognized the 'general rule' that criminal prosecutions are not to be enjoined, but pointed out, at 227, 118 N.E. at 255, '(T)here is an exception to this comprehensive statement. Jurisdiction in equity to restrain the institution of prosecutions under unconstitutional or void statutes or local ordinances has been upheld by this court when property rights would be injured irreparably, and when other elements necessary to support cognizance by equity are present. Greene v. Mayor of Fitchburg, 219 Mass. 121, 127, 106 N.E. 573 (1914); Moneyweight Scale Co. v. McBride, 199 Mass. 503, 506, 85 N.E. 870 (1908).'

As pointed out in the Shuman case, the occasions when an equity court may properly enjoin a criminal prosecution remain the exception to the 'general rule' of nonintervention. Some of the basic policy reasons underlying the rule of nonintervention were well-expressed by the Supreme Court of Hawaii: 'Courts of equity are not constituted to deal with crimes and criminal proceedings. They have no power to punish admitted offenders of a challenged penal statute after holding it to be valid, or to compensate those injured by the violations thereof while the hands of the officers of the law have been stayed by injunction. To that extent such courts are incapable of affording a complete remedy. Equity, therefore, takes no part in the administration of the criminal law. It neither aids, restrains, nor obstructs criminal courts in the exercise of their jurisdiction. Ordinarily a court of equity deals only with civil cases involving property rights where it can afford a complete remedy by injunctive relief. Hence it does not interfere in the enforcement of penal statutes even though invalid unless there be exceptional circumstances and a clear showing that an injunction is urgently necessary to afford adequate protection to rights of property so as to circumvent great and irreparable injury until the validity of the particular penal statute is sustained.' Liu v. Farr, 39 Hawaii 23, 35--36 (1950).

Both the Shuman and Liu cases quoted above indicated that equity would act only to protect 'property rights' from irreparable damage by criminal prosecution. In the leading case of Kenyon v. Chicopee, 320 Mass. 528, 70 N.E.2d 241 (1946), however, we largely rejected the personal rights-property rights distinction as a factor in considering whether an injunction should issue. We considered this question and said at 534, 70 N.E.2d at 244: 'We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. In general, these conditions are, (1) that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; (2) that the remedy at law is...