345 Mass. 257 | Mass. | 1962
This is a petition for a writ of mandamus to compel the respondént licensing commission “to refuse to issue or authorize and to revoke any approval or authorization that may have already been issued by . . . [it] for the transfer of a license issued pursuant to the provisions of G-. L. c. 138, sec. 15, from [the respondent] Silveira’s Liquor Store, Inc., 291-293 Cambridge Street in the City of Cambridge, to [the respondent] Cardullo’s, Inc., situated at 6-7 Brattle Street in the City of Cambridge.”
The respondents demurred on four grounds. Two of them were to the effect that the Legislature has provided an adequate statutory remedy and that the petitioner has no standing to bring the petition. The demurrers were overruled, and the respondents appealed.
The case was subsequently tried on the merits and the petitioner appealed from an order of the Superior Court dismissing his petition.
The petitioner has alleged substantially the following. He is an inhabitant, voter, and taxpayer in the city of Cambridge. On or about September 18,1961, Silveira’s Liquor Store, Inc., the holder of a license “for the sale of alcoholic beverages not to be drunk on the premises,” filed an application with the licensing commission for a transfer of (1) the license itself and (2) a transfer of the location to Cardullo’s, Inc., a retail store in Cambridge. After a hearing the commission failed to grant approval of the transfer. On or about March 28, 1962, Silveira’s Liquor Store, Inc., again applied to the commission for approval of the same transfer and on April 25,1962, the commission, by a majority vote, approved the transfer.
The petition also alleges, in substance, that the commission’s approval of the transfer of the license was illegal for the following reasons: (1) by virtue of G. L. c. 138, § 67, the commission had no authority to receive the new application for transfer on March 28, 1962, since this application was filed “within one year from the date of the last prior application” of September 18, 1961; (2) the location to which the license is to be transferred is within 500 feet of
General Laws c. 139, § 14, provides that a building or place used for the illegal keeping or sale of alcoholic beverages “shall be deemed a common nuisance.” It is well established in this Commonwealth that, unless special or peculiar damage is shown, a private citizen cannot bring mandamus to abate a common or public nuisance. Warner v. Mayor of Taunton, 253 Mass. 116, 118. See Cape Cod S.S. Co. v. Selectmen of Provincetown, 295 Mass. 65, 69. In the case of a common or public nuisance without special private injury, the Attorney General is the proper person to procure its abatement. Dartmouth v. Silva, 325 Mass. 401, 404. Massachusetts Soc. of Optometrists v. Waddick, 340 Mass. 581, 585-586. In the case before us the petitioner has not alleged any special or peculiar damage but merely that he is “an inhabitant, voter and taxpayer in the City of Cambridge. ’ ’ See Springfield Motel Assn. Inc. v. Alcoholic Beverages Control Commn. 338 Mass. 699, 703, wherein it was held that “ [t]he fact that a petitioner may suffer from business competition gives him no standing.” The petitioner’s contention that, although approval of the transfer
The cases cited by the petitioner to the effect that a private party may bring mandamus to enforce the performance by public officers of a public duty are inapplicable as they do not involve common or public nuisances.
Additionally, “ [i]t is an elementary principle that mandamus will not lie where there is available another and effective remedy. Iannelle v. Fire Commr. of Boston, 331 Mass. 250, 253. Duncan v. School Comm. of Springfield, 331 Mass. 738, 741-742. Gavin v. Purdy, 335 Mass. 236, 238.” Madden v. Secretary of the Commonwealth, 337 Mass. 758, 761. General Laws c. 139, § 16A,
Order overruling demurrers reversed.
Order dismissing petition affirmed.
Section 16A reads in part, “Upon a bill in equity brought in the nameof the commonwealth by the attorney general, or district attorney for the district, or the chief of police, or the board or officer having control of the police of the state, or of a town or city, or Toy not less than ten legal voters of a town or city, in their own names, stating that a building, place or tenement situated therein is being used for the illegal keeping, sale or manufacture of alcoholic beverages . . . the superior court may abate the same as a common nuisance and may enjoin the person conducting or maintaining the same ...” (emphasis supplied).