Turnpike Amusement Park, Inc. v. Licensing Commission of Cambridge

• Decision Date: 05 January 1962
• Citation: 343 Mass. 435,179 N.E.2d 322
• Parties: TURNPIKE AMUSEMENT PARK, INC. v. LICENSING COMMISSION OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 322

179 N.E.2d 322

343 Mass. 435

TURNPIKE AMUSEMENT PARK, INC. v. LICENSING COMMISSION OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 9, 1961.

Decided Jan. 5, 1962.

Walter H. McLaughlin and Arthur M. Gilman, Boston, for plaintiff.

Mosier B. Goldberg, Asst. City Sol., Cambridge, for defendant.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPIEGEL, JJ.

SPIEGEL, Justice.

The plaintiff brings this bill in equity under G.L. c. 231A against the licensing commission of the city of Cambridge for a decree declaring that the plaintiff 'is entitled to be granted licenses for the maintenance and operation of pinball machines at its place of business in the City of Cambridge, pursuant to the provisions of G.L. c. 140, § 177A,' ¹ and 'that the defendant does not have the authority or power to refuse to grant licenses for the operation and maintenance of pinball machines to qualified individuals in the City of Cambridge.' The court entered a decree favorable to the defendant from which the plaintiff appeals. The evidence is reported.

There was evidence of the following facts: The plaintiff is engaged in the operation of a bowling alley and also maintains a restaurant, coffee shop and certain amusement games on its premises. Prior to January 1, 1960, it operated and maintained 'pinball machines with free plays' pursuant to licenses issued by the defendant licensing commission. Prior to the close of the calendar year 1959, the plaintiff applied to the commission for a renewal of its licenses to operate these machines. The commission by letter dated January 7, 1960, notified the plaintiff's attorney that 'No pinball machines of any type will be licensed for 1960.' The commission has refused to renew or to issue licenses to anyone for the year 1960 for the operation of pinball machines.

The decree declared that: '1. The provisions of § 177A, c. 140, Massachusetts General Laws, are permissive and not mandatory as to the defendant licensing authority. 2. The provisions of § 177A, c. 140, do not require that the defendant grant any licenses thereunder but only prescribed the manner in which such licenses shall be granted if the defendant issues any for the devices covered. 3. Accordingly the plaintiff is not under the said law entitled to any license as of right if the defendant determines not to license such devices. 4. The action of the defendant in determining not to issue licenses under provisions of the said law is within the authority and power delegated to the defendant by the law and violates no constitutional right of the plaintiff.'

The plaintiff contends that under G.L. c. 140, § 177A, the commission had no authority to adopt a policy of denying all licenses for the operation of free play pinball machines and that its discretion is limited to determining the individual fitness of the applicant. Under this view of the statute the commission would be compelled to issue licenses to all applicants, assuming they are proper persons, without regard to the intended location of the machines, the number of machines in a given area, or any other consideration which the commission might deem pertinent to the issuance of a license. This contention cannot be sustained.

Places of public amusement are affected with the public interest. Opinion of the Justices, 247 Mass. 589, 595, 143 N.E. 808. 'The right to require licenses is based on the conception that places of public amusement may require supervision by public authorities to the end that they may not degenerate and become obnoxious to the public welfare.' Jaffarian v. Building Com'r. of Somerville, 275 Mass. 267, 271, 175 N.E. 641, 74 A.L.R. 403. In Marchesi v. Selectmen of Winchester, 312 Mass. 28, 30, 42 N.E.2d 817, 819, a case involving the licensing of a bowling alley, it was said that the local licensing authorities '* * * who may be assumed to be familiar with local conditions and with what will best serve the public interests of their communities, are granted broad discretionary powers.' The statute in that case, G.L. c. 140, § 177, provided that the local authorities '* * * may grant and may suspend or revoke at pleasure a license * * * to a person to keep a billiard, pool or sippio table or a bowling alley for hire, gain or reward, upon such terms and conditions as they deem proper * * *' and the court upheld the denial of a license thereunder.

The wording of § 177A of G.L. c. 140 does not require the conclusion that local authorities must issue licenses for the operation of automatic amusement devices regardless of their effect upon the welfare of the community. The language of the statute...