Phillips v. McLaughlin, 1072

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON
• Citation: Phillips v. McLaughlin, 82 R.I. 224, 107 A.2d 301 (R.I. 1954)
• Decision Date: 23 July 1954
• Docket Number: No. 1072,1072
• Parties: PHILLIPS v. McLAUGHLIN et al. M. P.

Page 301

107 A.2d 301

82 R.I. 224

PHILLIPS v. McLAUGHLIN et al.

M. P. No. 1072.

Supreme Court of Rhode Island.

July 23, 1954.

Leo Partick McGowan, Anthony A. Giannini, Providence, for petitioner.

James E. Brothers, Providence, for respondents.

CONDON, Justice.

This is a petition for certiorari to review the action of the state department of health in denying petitioner's application for a license to conduct a shellfish business (shell stock only) at 520 Thames street in the town of Bristol. We issued the writ and in compliance therewith all records and papers relating to the application have been duly certified to this court for our inspection.

It appears from such records that petitioner's application was denied without further consideration because he refused to execute the following from of affidavit:

'I, Everett S. Phillips, 10 South Grove Street, Warren, Rhode Island, on oath, depose and say: that in the event a license to conduct a shellfish business (Shellstock only) is granted to me at 520 Thames Street, Bristol, Rhode Island by the Rhode Island State Department of Health, I will have complete and immediate supervision over the conduct of such business and I will be the sole owner of this business and all the equipment used in connection therewith.

'I will not enter into any agreement or contract relating to the taking, processing, labeling, storing and/or transporting shellfish with anyone whose license to operate a shellfish business at the said address has been denied by the Rhode Island Department of Health, nor will I buy shellfish from, or sell shellfish to, or rent equipment from or permit to enter my shellfish business premises anyone who has been denied a license to operate a shellfish business by the Rhode Island State Department of Health.

'I further aver that I will conduct my shellfish business operations in compliance with the provisions set forth in Chapter 2039, R. I. Public Laws of 1948, as amended, and the Rules and Regulations Relating to the Licensing and Sanitation of Shellfish Businesses adopted in accordance therewith.

'It is understood that failure on my part to fulfill the promises entered into here will result in immediate revocation of my shellfish business license.

(Signature)

'Subscribed and sworn to before me this___day of_____A. D. 1953

Notary Public'

The petitioner contends that the director was without jurisdiction to require such an affidavit as a condition precedent to the issuance of a shellfish license in accordance with public laws 1948, chapter 2039. He further contends that if the director had jurisdiction he exceeded it by arbitrarily and capriciously requiring an unreasonable affidavit. The respondents, besides controverting those contentions, argue that the director's function under chapter 2039 is purely administrative and therefore his action in denying petitioner's application is not reviewable by certiorari.

It is settled by a long line of decisions of this court that certiorari does not lie to review legislative or administrative proceedings. Siegl v. Town Council & Zoning Board, 75 R.I. 502, 67 A.2d 369; R. I. Home Builders v. Hunt, 74 R.I. 255, 60 A.2d 496; Sisson v. Peloquin, R.I., 133 A. 621; Greenough v. School Committee, 27 R.I. 427, 62 A. 978; Donahue v. Town Council, 25 R.I. 79, 54 A. 933. Unless otherwise provided by statute the power delegated to boards and commissions or other similar bodies or public officers to grant or deny licenses to conduct certain trades or businesses subject to the police power is administrative, and the granting or denial of such licenses is discretionary. This court has no control over the lawful exercise of that power. However, where a question of the board's jurisdiction is raised we will intervene by certiorari solely to determine such question. Dexter v. Town Council, 17 R.I. 222, 21 A. 347;...