North Shore Corp. v. Selectmen of Topsfield

• Decision Date: 25 February 1948
• Citation: 322 Mass. 413,77 N.E.2d 774
• Parties: NORTH SHORE CORPORATION v. SELECTMEN OF TOPSFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 413

77 N.E.2d 774

NORTH SHORE CORPORATION

v.SELECTMEN OF TOPSFIELD.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1948.

Exceptions from Superior Court, Suffolk County; Cabot, Judge.

Petition by North Shore Corporation for a writ of certiorari against Selectmen of Topsfield to quash respondents' votes of March 7 and 10, 1947, which purported to rescind a vote of January 25, 1947, approving the location of a race track for horse racing. A judgment was entered quashing respondents' votes of March 7 and March 10, 1947, and the respondents bring exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, DOLAN, and SPALDING, JJ.

J. B. Harrington, of Salem, for petitioner.

S. L. Raymond, of Salem, and J. J. Sullivan, of Boston, for respondents.

SPALDING, Justice.

This is a petition for a writ of certiorari against the members of the board of selectmen of the town of Topsfield, hereinafter called the respondents, to quash their votes of March 7 and 10, 1947, which purported to rescind a vote of January 25, 1947, approving in accordance with G.L.(Ter.Ed.) c. 128A, § 13, as added by St.1934, c. 374, § 3, as amended, the location of a race track for horse racing. The respondents filed a return, and the case was heard upon the petition and the return and upon oral evidence as to (1) what interest, if any, the petitioner had in the premises in question on January 25, and March 7 and 10, 1947, and (2) what action, if any, the petitioner had taken in reliance on the vote of January 25. The judge ordered judgment to be entered quashing the respondents' votes of March 7 and March 10, 1947. The respondents excepted to the order for judgment and to the refusal of the judge to grant certain of their requests for rulings.

Facts as to which there was no dispute and those appearing in the return are these: The town of Topsfield is in a county in which at the last biennial election, pursuant to the provisions of G.L.(Ter.Ed.) c. 128A, § 14, as amended, the majority of th registered voters had voted in favor of permitting the pari-mutuel system of betting on licensed horse racing within the county. Within the limits of the town is a piece of property known as the Topsfield Fair Grounds which is owned by the Essex Agricultural Society of Topsfield, hereinafter called the society. On this property there is a race track which is suitable for horse racing. On April 15, 1946, the society granted to the petitioner an option for a lease of the race track for the purpose of conducting ‘harness horse racing.'¹ On or about January 7, 1947, the petitioner requested the selectment of Topsfield to approve, in accordance with G.L.(Ter.Ed.) c. 128A, § 13A, as added by St.1935, c. 454, § 8, as amended, the Topsfield Fair Grounds as a suitable location for horse racing. After notice and hearing in compliance with section 13A, the selectmen on January 25 voted to ‘approve the location of the race track at the Topsfield Fair Grounds for harness horse racing meetings.’ Shortly thereafter an election was held in the town of Topsfield, and one of the selectmen who had voted in favor of approving the location of the race track was defeated and another was elected in his place. On March 7, 1947, a special meeting of the new board was held and a majority of the respondents voted to rescind and revoke the vote of January 25, 1947.² The respondents also voted that the racing commission be notified of this action and that it be requested to cancel the hearing on the petitioner's application for a license which had been scheduled for March 14, 1947. These votes were ratified and confirmed by a majority of the respondents at a regular meeting held on March 10, 1947. No hearing or notice thereof was held or given prior to either vote.

The judge rules that the votes of March 7 and 10, 1947, purporting to rescind the vote of January 25, were invalid. The respondents by exceptions to the refusal of the judges to grant certain of their requests have raised the issue of the correctness of this ruling.

We are of opinion that the ruling was right. The judge rested his ruling on the ground that the petitioner in reliance on the vote of January 25 had made substantial expenditures and commitments. But in the view that we take of the case it is not necessary to decide what bearing, if any, this fact would have on the rights of the parties. As will presently appear, the votes of March 6 and March 10 were invalid for a more fundamental reason than that stated by the judge. If the ruling of the judge was right, the reason on which he rested it is of no materiality. Weidman v. Weidman, 274 Mass. 118, 125, 174 N.E. 206, 76 A.L.R. 1359;Bianco v. Lay, 313 Mass. 444, 450, 48 N.E.2d 36.

At the time of the enactment of the statute, G.L.(Ter.Ed.) c. 128A, inserted by St.1934, c. 374, § 3, authorizing and regulating horse and dog racing in the Commonwealth, G.L.(Ter.Ed.) c. 271, § 33, provided in part that ‘No land within a town shall be laid out or used as a race ground or trotting park without the previous consent of and location by the mayor and aldermen or selectmen, who may regulate and alter the terms and conditions under which the same shall be laid out, used or continued in use and may discontinue the same when in their judgment the public good so requires * * *.’ Section 33 stems from, and is substantially the same as, St.1856, c. 102, § 1. By c. 128A which authorized the licensing of horse and dog races on which the pari-mutuel system of betting was permitted, an important change was made in the laws relating to racing. Under the new statute the control and regulation of all racing where betting was permitted were granted to the newly created State racing commission. The Legislature, however, in enacting chapter 128A did not amend or repeal section 33 of c. 271, and the jurisdiction of the local authorities under that section, therefore, conflicted with that granted to the racing commission. To resolve this difficulty the Legislature enacted St.1935, c. 454, § 8, which added a new section, section 13A, to c. 128A.³ This section, as amended by St.1939, c. 159, and St.1941, c. 295, so far as here material, now reads as follows: ‘The provisions of section * * * thirty-three * * * of chapter two hundred and seventy-one * * * shall not apply to race tracks or racing meetings laid out and conducted by licensees under this chapter; except that no license shall be granted by the commission for a racing meeting in any city or town, except in connection with a state or county fair, unless the location of the race track where such meeting is to be held or conducted has been once approved by the major and aldermen or the selectmen as provided by said section...