2 Mass. App. Ct. 674 | Mass. App. Ct. | 1974
The plaintiffs’ amended bill in equity purports to be brought under G. L. c. 139, § 16A, as amended through St. 1934, c. 328, § 12. It seeks to abate as a common nuisance the sale of alcoholic beverages by a package store in the town of Dartmouth, to set
The plaintiffs contend that their amended bill states “two basic causes of action, one in public nuisance under . . . [G. L. c. 139, §§ 16 and 16A] and one based on common law private nuisance.” We agree with the Superior Court that the bill does not state any cause of action and therefore affirm.
1. A question whether a license has been lawfully issued or transferred is properly raised by a suit brought under G. L. c. 139, § 16A. Cheney v. Coughlin, 201 Mass. 204 (1909). Largess v. Nore’s Inc. 341 Mass. 438 (1960). Cleary v. Cardullo’s Inc. 347 Mass. 337, 350-351 (1964). First Church of Christ, Scientist v. Alcoholic Beverages Control Commn. 349 Mass. 273, 275, n. 1 (1965). Jasper v. Michael A. Dolan, Inc. 355 Mass. 17, 18 (1968).
The allegations of the amended bill which bear on the asserted illegality of the transfer are that when it was applied for, three hundred persons signed a petition in protest thereof; that the board called a public hearing at which no evidence was offered in support of the transfer; that such testimony as there was at the hearing consisted
The gravamen of these allegations appears to be that the approval of the transfer by the board was unlawful for two reasons: first, the absence of supporting evidence adduced, at a hearing and, second, non-compliance with a standard of “public need and common good” which, the plaintiffs contend, is mandated by G. L. c. 138, § 23 (eighth paragraph).
The plaintiffs cite no statute, and we find none, which requires a hearing by a local licensing board on an application for a transfer of location of a liquor license. General Laws c. 138, § 23 (eighth paragraph), provides that a “license issued under this chapter may, upon application pursuant to . . . [G. L. c. 138, § 15A],
Furthermore, it is not apparent that any purpose would have been served by an evidentiary hearing on the transfer application because (1) § 23 does not prescribe any objective criteria which had to be complied with before the application could be approved,
The standard for a valid approval of a transfer suggested by the plaintiffs, namely, “public need and common good,” does not suggest the appropriateness of an evidentiary hearing or of review by a court to determine whether the decision is supported by substantial evidence. That standard does not require the local board to determine facts of an adjudicative nature. Cf. Milli-gan v. Board of Registration in Pharmacy, 348 Mass. 491, 495, 500-501 (1965). It suggests instead “a political question, one of governmental policy peculiarly for the determination of an administrative department.” Natick Trust Co. v. Board of Bank Incorporation, 337 Mass.
The cases relied on by the plaintiffs are distinguishable. In Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79 (1968), the statutes in question, unlike G. L. c. 138, § 23, called for a hearing prior to the governmental action sought, and prescribed an objective standard which depended on the existence of a fact which the court determined to be adjudicative in nature. In Dixie’s Bar, Inc. v. Boston Licensing Bd. 357 Mass. 699, 703 (1970), which in relevant part involved a petition for a writ of certiorari, it was merely held that the petition was properly dismissed because no error of law, abuse of discretion, or arbitrary or capricious action was shown on the record. The factual allegations of the amended bill before us do not evince error of law, abuse of discretion, or arbitrary or capricious action.
2. The allegations of the amended bill which bear on private nuisance are cast in terms of predictions as to conditions (noise, traffic congestion, litter, and the like) which (it is said) will in the future attend the operation of the package store. So far as appears, the package store has not yet commenced operation, and the conditions have not yet arisen. Predictions are not facts. They are inferences or conclusions drawn from facts and, as such, unless they are supported by particular facts alleged, are not admitted on demurrer. See Shuman v. Gilbert, 229 Mass. 225, 230 (1918); Laughlin Filter Corp. v. Bird Mach. Co. 319 Mass. 287, 290 (1946). The only material facts well pleaded and conclusions to be drawn therefrom which can be taken as admitted on demurrer (see Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26-27 [1932]) are that the license has been transferred to the premises and that the defendant licensee intends to and will operate those premises as a
Interlocutory decrees affirmed.
Final decree affirmed.
The plaintiffs do not raise, and we do not consider, the procedural question whether it may have been error to dismiss the amended bill generally, instead of only as to those defendants who filed demurrers. Rule 1:13 of the Appeals Court, 1 Mass. App. Ct. 889 (1972).
The plaintiffs cite that part of § 23 which provides: “The provisions for the issue of licenses and permits hereunder imply no intention to create rights generally for persons to engage or continue in the transaction of the business authorized by the licenses or permits respectively, but are enacted with a view only to serve the public need and in such a manner as to protect the common good and, to that end, to provide, in the opinion of the licensing authorities, an adequate number of places at which the public may obtain, in the manner and for the kind of use indicated, the different sorts of beverages for the sale of which provision is made.”
The hearing requirement in the first paragraph of § 15A applies only to applications for original licenses.
So far as appears from the amended bill, no written objection had been filed by a church or school under G. L. c. 138, § 16C, as amended through St. 1971, c. 586, § 2, nor is there any suggestion that there is a church or school in the vicinity.
