Rea v. Cook

• Citation: 217 Mass. 427,105 N.E. 618
• Parties: REA et al. v. COOK et al., Board of Aldermen.
• Decision Date: 19 May 1914
• Court: United States State Supreme Judicial Court of Massachusetts

217 Mass. 427
105 N.E. 618

REA et al.
v.
COOK et al., Board of Aldermen.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1914.

Report from Supreme Judicial Court.

Petition for mandamus by Arthur L. Rea and others against Charles F. Cook and others, constituting the Board of Aldermen of the City of Everett, to compel the issuance of a license to transport liquors into a city. Cause reported for determination by the full court. Writ issued.

Austin [217 Mass. 432]M. Pinkham, of Boston, for petitioner American Exp. Co.

Chas. W. Bartlett, Jos. W. Bartlett, Frederick E. Jennings, and Arthur Thad Smith, all of Boston, for other petitioners.

Nelson P. Brown, of Boston, for defendants Cook and Robbins.

H. Huestis Newton, of Boston, for defendant Hilton.

E. Leroy Sweetser, of Boston, for defendants McNamara, Faulkner, and Ferguson.

[217 Mass. 427]RUGG, C. J.

This is a petition for a writ of mandamus. The petitioners, each of whom is either a person, firm or corporation regularly and lawfully conducting a general express business, severally requested, in writing, that the board of aldermen grant to each a permit to transport spirituous or intoxicating liquors into or in the city of Everett. The respondents constitute the board of aldermen of that city, in which licenses of the first five classes for the sale of intoxicating liquors are not granted. A majority of them have taken the position that under no circumstances will they vote to grant a permit either to any one of the petitioners, or to any other person, firm or corporation qualified [217 Mass. 428]to ask for and to receive a permit.

[1] The question presented is whether, under such circumstances, the board of aldermen are required to grant a permit for such transportation of intoxicating liquors. The decision depends upon the meaning of the word ‘shall’ in St. 1906, c, 421, § 2, which, as amended by St. 1911, c. 423, is as follows:

‘The mayor and aldermen in cities and the selectmen in towns in which said licenses of the first five classes are not granted shall annually in the month of April, grant and issue one or more permits under the provisions of this act, to become effective on the first day of May following, and to be granted only to a person, firm or corporation regularly and lawfully conducting a general express business and to no other person, firm or corporation, and every such permit shall specify the residence by street and number (if any) of the holder, and shall be subject to all laws now or hereafter in force relative to the transportation of such liquors.’

There is at common law no limitation upon the right to transport intoxicating liquors. The meaning of this statute regulating

[105 N.E. 619]

it must be ascertained in the light of the history of our legislation touching the subject. The present local option license law had its origin in St. 1875, c. 99. That contained no provision respecting the transportation of liquors. The earliest act of this nature was St. 1878, c. 207, whereby was forbidden the bringing of intoxicating liquors into no-license municipalities with intent to sell or having reasonable belief that they were brought there with intent to be sold in violation of law. R. L. c. 100, § 48. Plain and legible marking of packages when delivered to, and the keeping of minute records of their transportation by, a railroad and others regularly and lawfully conducting a general express business, was required by St. 1897, c. 271, now R. L. c. 100, §§ 49 to 53. This statute was said, in Commonwealth v. Intoxicating Liquors, 172 Mass. 311, 315, 52 N. E. 389, to indicate ‘that the policy of the commonwealth is to require that the traffic in liquors in this state shall be open, so that every step shall be exposed to the scrutiny of the authorities, and that the violation of the law may be the more easily detected.’ Under this statute...