Rea v. Cook

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

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

COUNSEL

Austin 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.

OPINION

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 to ask for and to receive a permit.

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 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 and as it stood in the Revised Laws, however, anybody except a railroad and those conducting a general express business, lawfully could transport liquor for hire into a no-license municipality, provided it was not to be sold contrary to law. Com. v. Beck, 187 Mass. 15, 72 N.E. 357. It is common knowledge that thereafter there grew up a class of so-called carriers, known as 'pony express,' under no regulation whatever. To prevent this abuse the Legislature went one step further and required by St. 1906, c. 421, a permit by local authorities before one could transport intoxicating liquor for hire into no-license communities, so that such carriers would be compelled by registration to come under the close inspection of public officers. Another step was taken by St. 1907, c. 517, as amended by St. 1910, c. 497, which required all consignors or sellers of intoxicating liquor to be transported into no-license cities or towns (except by railroad, or steamboat to Martha's Vineyard and Nantucket) to deliver it only to a person or corporation 'regularly and lawfully conducting a general express business.' This was strengthened by St. 1911, c. 423, which allowed permits to be issued by local authorities for transportation of intoxicating liquor in or into no-license communities only to persons, firms or corporations 'regularly and lawfully conducting a general express business.' The effect of these statutes was to put all kinds of carrying of intoxicating liquors for hire, in or into no license places, even though such carriage was wholly within the city or town, under public supervision, and to restrict such carrying to those who transact a general and lawful express business. Com. v. People's Express Co., 201 Mass. 564, 579, 88 N.E. 420, 131 Am. St. Rep. 416.

This brings us to the close consideration of the statute in question. It is manifest that theretofore the Legislature had not undertaken, since the repeal of the early prohibitory law and the adoption of the policy of local option for regulating intoxicating liquors, to control such use of intoxicating liquors as falls short of drunkenness. The object of the liquor law has been to control only the sale and transportation of intoxicants, not their consumption, and there has been no statute to prohibit the carrying of such liquors into no-license communities. Legislative efforts have been confined to a regulation of such transportation, to the end that illegal sales or keeping for sale may be prevented. Com. v. Mixer, 207 Mass. 141, 93 N.E. 249. The title of chapter 421, St. 1906, is:

'An act to provide for registration of carriers of intoxicating liquors to or in cities and towns which do not grant licenses of the first five classes.'

These words do not indicate a purpose to stop transportation altogether, but rather to regulate it still further. The first section prohibits any transportation for hire, without a permit, except by a railroad or street railway. In the light of the previous le...