Saxe v. St. Com'rs of Boston

• Decision Date: 02 December 1940
• Citation: 30 N.E.2d 380,307 Mass. 495
• Parties: SAXE v. STREET COM'RS OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 495

30 N.E.2d 380

SAXE

v.STREET COM'RS OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 2, 1940.

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

Certiorari proceeding by Goldie Saxe against the Street Commissioner of the City of Boston, to quash the proceedings of the board revoking a license to keep, store, and sell gasoline and other inflammable products upon certain premises. On petitioner's exception to an order dismissing the proceeding and to the denial of a request for rulings.

Exceptions overruled.

Argued Before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

H. Singer, of Boston, for petitioner.

K. Hern, Asst. Corp. Counsel, of Boston, for respondent.

RONAN, Justice.

This is a petition for certiorari to quash the proceedings of the respondent board on December 7, 1939, revoking a license to keep, store and sell gasoline and other inflammable products upon certain premises in South Boston. The petitioner purchased the premises on August 22, 1939, from Robert A. Grimes and Genevieve M. Grimes to whom the board, in 1933, granted said license. The petitioner alleges that the license has since continued in force and effect by virtue of the annually filing by her predecessors in title of a certificate of registration and by the reinstatement of said license by the fire marshal on April 27, 1937. The return of the respondents shows that, upon a petition of one Powers and after notice and a public hearing, the board voted to revoke the license, as it had been represented that ‘there has been no use or occupancy of the premises under the said license.’ The revocation was approved by the mayor of Boston. The petitioner and interested parties were notified of the revocation on December 26, 1939. The petitioner alleged exceptions to an order dismissing the petition and to the denial of requests for rulings.

The license was issued on December 30, 1933, by virtue of G.L. (Ter.Ed.) c. 148, § 13, which prohibited the use of a building for the keeping, storage, manufacture or sale of crude petroleum or any of its products unless a license therefor was granted by the local incensing authority, which, in Boston, is the respondent board by virtue of St.1909, c. 486, § 28. Foss v. Wexler, 242 Mass. 277, 281, 136 N.E. 243. Said § 13 at that time provided that ‘any building or other structure once used under a license * * * may be continued in such use from year to year if the owner or occupant thereof shall annually, on or before April thirtieth, while such use continues, file for registration * * * [if the building or structure is located in Boston] with the fire commissioner, a certificate reciting such use and occupancy. * * * Every license issued hereunder shall expire on April thirtieth following the date of issue, and registrations hereunder shall be effected on or before April thirtieth to take effect on May first following.’ Under this statute it was held that if the licensee did not use his premises for the purpose for which the license was issued before the next succeeding thirtieth day of April then the license expired on the last mentioned date and that it could not be extended beyond that date by filing a certificate of use and occupancy. City of Boston v. White Fuel Corp., 294 Mass. 258, 1 N.E.2d 186. Thereafter section 13 was amended by St.1936, c. 394, which substituted a new section for section 13 which, in so far as now material, provided that any license for the keeping, storage, manufacture or sale of certain articles including crude petroleum and its products granted prior to July 1, 1936, including any license reinstated and continued, shall remain in force unless and until revoked; that the owner or occupant of the land the holder of any license, ‘granted prior to July first, nineteen hundred and thirty-six,’ including any license reinstated and continued by the marshal as herein provided ‘shall annually, on or before April thirtieth, file * * * with the fire commissioner * * * a certificate of registration setting forth the name and address of the holder of such license,’ and that the ‘marshal may * * * reinstate and continue in force and effect any license granted prior to July first, nineteen hundred and thirty-six, for the keeping, storage, manufacture or sale of [certain articles including gasoline and similar products] irrespective of the extent of the use and occupancy of buildings or other structures made or had under said license prior to the date of such reinstatement and continuance.’ The license issued to the Grimeses was reinstated by the fire marshal on April 27, 1937.

The principal contention of the petitioner is that, since the 1936 amendment, the continuance of a license is not conditioned upon the use of the premises for the purposes for which the license was issued, and that she is the holder of the license which was in full force and effect when she purchased the land.

The nature of the license issued under G.L. (Ter.Ed.) c. 148, § 13, to keep, store and sell inflammable articles is not merely a personal privilege authorizing the performance of an act that, without the license, might constitute a nuisance, but it is essentially a grant which, upon the exercise of the license, attaches to the premises described in the license. The license is the means employed to regulate the use of the land in the interests of the public safety. That is the primary function of the license. The holder may at his option exercise the...