Pettengell v. Alcoholic Beverages Control Com'n

• Decision Date: 27 October 1936
• Citation: 4 N.E.2d 324,295 Mass. 473
• Parties: PETTENGELL et al. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 473

4 N.E.2d 324

PETTENGELL et al. v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

October 27, 1936

Report and Reservation from Supreme Judicial Court, Suffolk County.

Mandamus proceeding commenced in the Supreme Judicial Court for Suffolk County, by one Pettengell and others against the Alcoholic Beverages Control Commission. On reservation and report by the single justice.

Writ issued.

E. M. Sullivan and G.I.Kellaher, both of Boston for petitioner.

R Clapp, Asst. Atty. Gen., for respondent.

RUGG Chief Justice.

This is a petition for a writ of mandamus by seven registered voters and taxpayers in the town of Salisbury. At the hearing it was agreed in open court by all parties that all the allegations in the petition were true, that the only defenses were the issues of law raised by the answer, and that the answer was not a demurrer. The single justice reserved and reported the case on the petition and answer and this agreement, with the statement that in the exercise of any discretion vested in him he would not dismiss the petition.

The respondents are the individuals constituting the alcoholic beverages control commission established by section 43 inserted in G.L. (Ter.Ed.) c. 6, by St.1933, c. 120, § 2, as amended by St.1933 (Ex.Sess.) c. 375, § 1. They are hereafter called the commission. By G.L. (Ter.Ed.) c. 138, § 64, as appearing in St.1933 (Ex.Sess.) c. 376, § 2, as amended by St.1934, c. 385, § 20, it is provided that, ‘ if it appears to the commission that a license has been issued under this chapter by the local licensing authorities in excess of the quota prescribed by section seventeen or in violation of section sixteen A or any other provision of this chapter, the commission shall, after notice to said authorities and to the holder of such license and after reasonable opportunity for them to be heard by it, revoke such license, whereupon such license shall be surrendered to said authorities, and the decision of the commission shall be final and conclusive.’ This section imposes upon the commission a public official duty to make determination whether the local licensing authorities have issued licenses in excess of the quota prescribed by said section 17 (G.L.Ter.Ed. c. 138, § 17, as added by St.1933, Ex.Sess., c. 376, § 2, as amended by St.1935, c. 440, § 15). The performance of that duty may be enforced by petition for mandamus by voters or taxpayers of the town. Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 93, 153 N.E. 322.

The ‘ quota prescribed’ must be determined in conformity to section 17 of said chapter 138 as amended by St.1935, c. 440, § 15. It is there provided with reference to the number of licenses granted in a town like Salisbury that in a town ‘ which has an increased resident population during the summer months, the local licensing authorities may make an estimate prior to April first in any year of such temporary resident population as of July tenth following, a copy of which estimate shall be transmitted forthwith to the commission, and one additional license under section twelve * * * may be granted for each unit of one thousand or additional fraction thereof of such population as so estimated, and one additional license under section fifteen * * * may be granted for each unit of five thousand or additional fraction thereof of such population as so estimated.’ The allegations of the petition are that the licensing board of Salisbury in the pretended exercise of its authority under said section 17 has in form of law granted a total of thirteen so-called seasonal licenses of which ten are of a class described in section 12 and three of a class described in section 15 of said chapter 138 (as amended by St.1935, c. 440, §§ 9, 12). There are further allegations to the effect that thirteen seasonal licenses are in excess of the legal quota allowed to the town of Salisbury in that the total of temporary resident population as of July 10, 1936, will not be in excess of four thousand. Detailed allegations support these general averments. It is also alleged that the licensing board of the town on March 2, 1936, officially notified the commission that it had estimated the temporary resident population of the town as of July 10, 1936, at nine thousand five hundred persons, and thereafter on April 8, 1936, ‘ two members of the licensing board * * * as it was then constituted, pretending to act on behalf of said licensing board, but without any official authority therefor granted at a duly constituted meeting of said licensing board, delivered a written notice’ dated March 31, 1936, addressed to the commission, of this tenor: ‘ You are hereby notified that in accordance with chapter 376 of the Acts of 1933 [Ex.Sess.] and amendments thereto this Board have this day estimated the temporary resident population during the summer months in the town of Salisbury as of July 10, 1936, as 15,000.’ It was signed by only two members of the licensing board. That estimate ‘ was not the official action of a duly constituted meeting of the licensing board’ of the town of Salisbury, and both estimates ‘ are arbitrary, capricious and were made in absolute disregard of all known subsidiary existing data and facts upon which a bona fide and legal estimate should be made.’ Such existing data and facts are specified at some length in the petition.

It was pleaded in the answer (1) that the petitioners have not set forth any matter or cause entitling them to a writ of mandamus against the respondents, (2) that the remedy of the petitioners, if any, was a petition for a writ of certiorari against the licensing board of the town of Salisbury, and (3) that the...