Braconier v. Packard

| Mass. | Oct 30, 1883

Morton, C. J.

It is provided by the Pub. Sts. c. 100, § 5, that, in cities, licenses to sell intoxicating liquor “may be granted annually by the mayor and aldermen,” and that every license shall be signed by the mayor and by the clerk of the city by which it is issued. The St. of 1882, c. 164, provides that, “in all laws relating to cities, the words mayor and aldermen shall, unless provision is or shall be otherwise made, be construed to mean board of aldermen.”

By these statutes, the responsibility of granting or refusing licenses is cast upon the board of aldermen; and the mayor, in signing the licenses, like the city clerk, performs a merely ministerial duty. If the board of aldermen grant a license, and the licensee does what the statute requires of him, by paying the license fee and filing his bond, he is entitled to his license, and it is the duty of the mayor to sign it; a duty which will be enforced by mandamus, unless the mayor shows sufficient cause why such a writ should not be issued.

It is not the intention of the statutes that the mayor should have the power to revise the proceedings of the board of aider-men, and practically set them aside, if he should deem them to have been irregular or illegal. Upon this question, the licensee has the right to a trial before a judicial tribunal. Pub. Sts. c. 100, § 6. But inasmuch as this court would not, in its discretion, grant a writ of mandamus to compel the mayor to sign a license, if the proceedings of the board of aldermen in granting it were clearly illegal, we have considered the objections made by the respondent in this case.

The objection that the board of aldermen, in granting this license, did not act in accordance with their usual modes and rules of procedure, has no force. The board suspended its rules. It is within the power of a deliberative body to suspend, waive, or modify its rules of procedure if it sees fit. Holt v. City Council of Somerville, 127 Mass. 408" court="Mass." date_filed="1879-09-04" href="https://app.midpage.ai/document/holt-v-city-council-6419723?utm_source=webapp" opinion_id="6419723">127 Mass. 408.

The principal objection to the proceedings of the board of aldermen is that the notice of the application for a license, published in the newspaper, was not sufficient. The statute requires that the notice shall “ set forth the name of the applicant in full, the class of the license applied for, and a particular description of the premises on which the license is to be exercised, designating the building or part of building to be used, and, if practicable, the street and number.” Pub. Sts. c. 100, § 6. And it further provides, that, if a license is granted without such previous publication, any citizen of the city may make complaint to a judicial tribunal and cause a revocation of the license. The object of the provision is to give full information to the public of the person who applies, and of the place where the license is to be exercised, so that any citizen may object to the granting of the license.

It seems to us, that, if these requirements are substantially complied with, so that it appears that the purpose of the statute is satisfied, it is sufficient; and that it would be too strict a construction to hold that any immaterial departure from the literal terms of the statute would invalidate a license. In the case before us, the notice published was of an application by “ Franz L. Braconier, for a license of the sixth class as a druggist, his place of business being in a building known as Keith’s Block, on the easterly side of Main Street at the corner of South Street.” It is not contended that the block or the street was numbered. This notice designates the building, in which the license is to be used, as Keith’s Block, at the corner of Main and South Streets, and the part of the building as the druggist shop of the applicant in said block. He had a druggist’s sign in front of his shop, and no one could fail to understand the precise place intended; and we are of opinion that it was a sufficiently particular description of the premises on which the license was to be exercised.

The description of the applicant as Franz L. Braconier, using the initial letter of the middle name, instead of the whole name, is in our opinion immaterial. He wrote his name and was known as “ Franz L. Braconier,” and this would be deemed to be his name in full in an indictment or other criminal proceeding against him. The use of the initial instead of the whole middle name could not possibly deceive or mislead any one, and was a substantial and sufficient compliance with the requirements of the statute.

Peremptory mandamus to issue.