Scudder v. Bd. of Selectmen of Sandwich

• Decision Date: 24 June 1941
• Parties: SCUDDER v. BOARD OF SELECTMEN OF SANDWICH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 373

34 N.E.2d 708

SCUDDER

v.BOARD OF SELECTMEN OF SANDWICH.

Supreme Judicial Court of Massachusetts, Barnstable.

June 24, 1941.

Exceptions from Superior Court, Barnstable County; Morton, Judge.

Petition by Frederic F. Scudder against the Board of Selectmen of Sandwich for a writ of mandamus to compel the Selectmen of Sandwich to grant petitioner a license for the storage and sale of gasoline on his premises. On petitioner's exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

K. E. Wilson and D. J. Fern, both of Hyannis, for petitioner.

J. P. Sylvia, Jr., of Boston, for respondent.

QUA, Justice.

By this petition for a writ of mandamus the petitioner seeks to compel the selectmen of Sandwich as the ‘local licensing authority’ to grant him a license for the storage and sale of gasoline on premises adjoining the Cape Cod Canal. G.L.(Ter.Ed.) c. 148, § 13, as last amended by St.1939, c. 333.

The selectmen gave the petitioner a hearing as required by the statute and later notified him that they refused to grant the license. An auditor whose findings of fact were not to be final made a detailed report wherein he found that the reasons of the selectmen for refusing the license were that the petitioner had stated that he would put out of business the Sandwich Marine Corporation, which a short time before had obtained a similar license for an immediately adjoining location; that the petitioner had assumed a ‘general arrogant attitude’; ‘that he would take them [the selectmen] to court’; that ‘they refused to be a party to put someone else out of business who had invested all his money in his place and who already had a permit’; that the petitioner ‘as an agent of Gulf Oil Corp. would provide unfair competition’; that ‘it was not for the public good to allow Scudder with the help of a big corporation behind him to do another man [referring to the person or persons interested in Sandwich Marine Corporation] out of his week's pay’; and that being engaged in the same business as Sandwich Marine Corporation ‘was a lack of ‘co-operation.” The auditor found that the ‘essence’ of the board's reasons for refusing a license to the petitioner was ‘the protection of the business of Sandwich Marine Corporation, which corporation is controlled and operated by Sandwich residents.’ The petitioner was not a resident of Sandwich.

At the trial in the Superior Court evidence in addition to the auditor's report, including the deposition of one Pope, was properly received under the provisions of Rule 88 of that court (1932). Ott v. Comeau, 297 Mass. 108, 8 N.E.2d 173. There is nothing in the record to show that Pope's deposition had been taken in violation of Rule 39 of the Superior Court (1932). See G.L.(Ter.Ed.) c. 233, § 25. Some of this evidence tended to show that there was no personal discrimination against the petitioner; that protection of the business of the Sandwich Marine Corporation was not the ‘essence’ of the reasons for refusing the license; and that public disapproval of a license to the petitioner and the facts that there was not business for two at the location and that in competition both would fail were reasons actuating the selectmen. The judge found that the reasons for the refusal of a license to the petitioner ‘were set forth in’ the auditor's report, but he found also that their ‘essence’ was not the protection of the business of another licensee, and that the action of the board was ‘reasonable and proper’ and ‘in no sense capricious, arbitrary or whimsical.’

No foundation for relief by writ of mandamus appears in this record. That writ is issue only where the respondents are under a legal duty to perform some particular act or acts the performance of which the court can order in definite terms and enforce if necessary. Knights v. Treasurer & Receiver General, 236 Mass. 336, 337, 128 N.E. 637;Madden v. Board of Election Commissioners, 251 Mass. 95, 98, 146 N.E. 280;Liggett Drug Co., Inc. v. Board of License Commissioners of North Adams, 296 Mass. 41, 44, 4 N.E.2d 628;Security Co-operative Bank v. Inspector of Buildings of Brockton, 298 Mass. 5, 6, 9, N.E.2d 596. This is not a case where the selectmen have refused to act and can be compelled by the court to take action. Compare Dullea v. Selectmen of Peabody, 219 Mass. 196, 106 N.E. 852;Commonwealth v. McCarthy, 225 Mass. 192, 196, 114 N.E. 287;Siegemund v. Building Commissioner of Boston, 259 Mass. 329, 334, 335, 156 N.E. 852;Pettengell v. Alcoholic Beverages Control Commission, 295 Mass. 473, 478, 4 N.E.2d 324. They have acted and have refused the license. There is no finding that they have acted in bad faith, so that they can be ordered to act in good faith. Compare French v. Jones, 191 Mass. 522, 78 N.E. 118, 7 L.R.A.,N.S., 525; Rea v. Aldermen of Everett, 217 Mass. 427, 431, 432, 105 N.E. 618;Jaffarian v. Mayor of Somerville, 275 Mass. 264, 175 N.E. 639. We are not prepared to say that the judge was obliged to find that they acted arbitrarily, whimsically, or capriciously, even though their reasons were those stated by the auditor. We construe the judge's...