Commonwealth v. Hamer, 128 Mass. 76

Commonwealth v. Hamer

128 Mass. 76 | Mass. | 1880

Soule, J.

It is provided by the St. of 1875, c. 99, § 12, that “ the mayor and aldermen or the selectmen of the city or town by which a license ” for the sale of spirituous or intoxicating liquors “ has been issued, after notice to the licensee and reasonable opportunity for him to be heard by them, or by a committee of their number, may declare his license forfeited upon proof satisfactory to them that he has violated, or permitted to be violated, any of the conditions thereof.” By this provision the mayor and alder*78men of the city of ISTewburyport were authorized, after due notice to the defendant of any charge against him of violating his license, to investigate the matter, and, if satisfied by proof that he had violated any of its provisions, to declare his license forfeited. Such action of the mayor and aldermen must appear in some form by their record, in order to its having any validity, because the record of that body is the ordinary and regular evidence of its acts. It is not enough that the record should show merely that the board determined to revoke the license, because it has not the power to do this arbitrarily, or because it has become satisfied that the license was inconsiderately issued. The power to revoke is limited by the provision of the statute to cases in which, after due notice and reasonable opportunity to the licensee to be heard, the board is satisfied by proof that he has violated or permitted to be violated one or more of the conditions of his license, and the record must show that the order of revocation is made under such circumstances that the board making it was acting within its jurisdiction. Commonwealth v. Moylan, 119 Mass. 109.

In the case at bar, the record of the mayor and aldermen shows that the board declared the defendant’s license forfeited, after a hearing on a verbal complaint made to the board, the defendant being present with counsel, and after a finding that he had violated the provisions of his license. We are of opinion that this record is sufficient for the purpose. The statute does not require, in terms, that the hearing shall be had on a written complaint, nor that the complaint shall be recorded, nor that the record shall indicate the particular way in which the licensee is found to have violated his license. Nor do we see any satisfactory reason for holding that the record should be thus full. As no license can be declared forfeited till the licensee has had notice of the charge against him and an opportunity to be heard upon it, there is no danger that he will be surprised by any finding or order of the board; and as the result is the same, whatever may be the particular in which he has violated the provisions of his license, and there is no appeal from the decision of the board, the requirements of the law are satisfied if the record shows, in the general form, which was adopted in the case under consideration, that the notice to the licensee and the opportunity to be heard *79were given, and that the fact that he had violated the provisions of his license was found, before the license was declared forfeited.

The defendant admitted that he kept intoxicating liquors for sale, and attempted to justify under a license. He started with the presumption that he was not licensed. St. 1864, e. 121. This presumption could be overcome only by proof of a valid license subsisting at the time of the alleged offence. It was not overcome by the proof of a license issued which had afterward been forfeited. There is no provision of law that the forfeiture of a license shall not take effect till written notice thereof is served on the licensee. Verbal notice is enough, if any notice is necessary. Exceptions overruled.