308 Mass. 142 | Mass. | 1941
This is. a petition for a writ of certiorari to quash the revocation by the respondent board on April 28, 1939, of a license, issued to the petitioner on January 13, 1939, under G. L. (Ter. Ed.) c. 148, § 13, as amended by St. 1938, c. 99, to keep, store and sell petroleum products and denatured alcohol upon certain premises in Quincy. The return as extended shows that the respondent board mailed, postpaid, on April 24, 1939, a notice addressed to the petitioner to the effect that a hearing would be held at a certain hour on April 28, 1939, in the office of the city clerk, to show cause why his license should not be revoked for “Breach of conditions of said permit”; that a hearing
The nature of a license authorizing the use of a building or structure to keep, store, manufacture and sell gasoline and similar products has been determined by this court. Such a license in one aspect is a personal privilege, conferred upon one to enable him to use his land for certain purposes; and in another aspect the license, as soon as the rights conferred by it are exercised, becomes a grant which attaches
The license was granted in accordance with the statute, G. L. (Ter. Ed.) c. 148, § 13, as amended by St. 1938, c. 99, which provided that it “may be revoked for cause,, after notice and a hearing given to such owner or occupant, by the local licensing authority.” The rights of the petitioner are entirely dependent upon the provisions of the statute. He sought and secured a license that was subject to a power of revocation which, if exercised in compliance with the statute, would give him no just ground of complaint. Commonwealth v. Kinsley, 133 Mass. 578. Union Institution for Savings v. Boston, 224 Mass. 286. Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95. Newcomb v. Aldermen of Holyoke, 271 Mass. 565. Revere v. Riceman, 280 Mass. 76. N. V. Handel Industrie Transport Maatschappij v. State Fire Marshal, 305 Mass. 482.
The statute does not enumerate the specific grounds upon which the power of revocation may be exercised, Commonwealth v. Moylan, 119 Mass. 109; Commonwealth v. Hamer, 128. Mass. 76; but authorized in general terms a revocation for cause. Consequently, a revocation cannot be effected except for a cause sufficient in daw. Dunn v. Mayor of Taunton, 200 Mass. 252, 258. Gardner v. Lowell, 221 Mass. 150, 153. Bailen v. Assessors of Chelsea, 241 Mass. 411, 414. Corrigan v. School Committee of New Bedford, 250 Mass. 334. Rinaldo v. School Committee of Revere, 294 Mass. 167. Houghton v. School Committee of Somerville, 306 Mass. 542.
One of the prerequisites to the exercise of the statutory power is that notice setting forth the grounds upon which the respondent board intends to proceed must be given to the licensee. While it is the initial step in the procedural process required by the statute, yet it is not a matter of procedure alone but one of substantive right. Stiles v. Municipal Council of Lowell, 233 Mass. 174. McKenna v. White, 287 Mass. 495. The notice need not be drafted with the certainty of a criminal pleading, Commonwealth v. Bearce, 150 Mass. 389; Mayor of Medford v. Judge of the First District Court of Eastern Middlesex, 249 Mass. 465; Matter of Mayberry, 295 Mass. 155, 160, 161, but due regard must be had to the nature of the proceeding and the character of the rights that may be affected. In re Wood & Henderson, 210 U. S. 246. Missouri v. North, 271 U. S. 40. Grandview Dairy, Inc. v. Baldwin, 239 App. Div. (N. Y.) 640. Silverstein v. Mealey, 259 App. Div. (N. Y.) 854. State v. Becker, 326 Mo. 1193. Dyment v. Board of Medical Examiners, 57 Cal. App. 260, 265. Abrams v. Daugherty, 60 Cal. App. 297, 303. Klafter v. Examiners of Architects, 259 Ill. 15, 22. Braucher v. Examiners of Architects, 209 Ill. App. 455. The grounds upon which it is proposed to proceed should be stated with reasonable particularity so that the notice is sufficiently definite fairly to apprise
The petitioner contends that the cause upon which the respondent board purported to revoke the license was not a sufficient ground. The securing of a license on the misrepresentation of the applicant that he was the true owner of the premises and that he intended to conduct the business in good faith has been held to constitute a fraud upon the licensing board and to be adequate ground for the revocation of the license. Johnson v. Towsley, 13 Wall. 72. State v. Zachritz, 166. Mo. 307. Andrews v. Auer, 177 Mich. 244. State v. O’Brien, 201 Wis. 356. Opera Wine & Liquor Corp. v. State Liquor Authority, 258 App. Div. (N. Y.) 839. Whether misrepresentation by the petitioner in securing the license in respect to the matters disclosed by the return and found by the single justice is sufficient ground for the revocation of the license need not be decided, in the view we take of the case; and'we assume in favor of the respondent board that the ground upon which it acted was sufficient
This brings us to the principal contention of the petitioner, that the cause assigned was not the cause upon which the action of the board was based. He contends that revocation was not based upon “Breach, of conditions of said permit.” The license itself, a copy of which is included in the return, did not contain any express conditions. The statute does not in terms provide for the imposition of conditions or for the conditional issue of a license. But if the board did impose certain conditions, Commonwealth v. Willcutt, 259 Mass. 406; Leach v. State Fire Marshal, 278 Mass. 159, they do not appear to be included in the vote grapting the license or to have been made a part of the records of the board. Morrison v. Selectmen of Weymouth, 279 Mass. 486, 494.
The petitioner could properly assume that the only complaint that would be heard was whether he had committed any breach of the terms of his license, and he could also properly assume that, without warning to him, no other ground for the revocation would be asserted or heard. Daley v. District Court of Western Hampden, 304 Mass. 86. Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U. S. 292.
Breach of the conditions of the permit must be construed to mean existing violations of the terms of the license and to refer to some conduct of the licensee which was inconsistent with the provisions of his license. We do not think that a charge that he had breached the conditions of his license can fairly be understood to relate to conduct of the petitioner as an applicant or to his action antecedent to the issuance of the license. It is plain that there is a difference between charging one with having fraudulently obtained a license and charging him with violating the terms of a license. A license subject to forfeiture for violation of the conditions upon which it was to be exercised cannot be revoked or recalled by the licensing board “either arbitrarily, or because they considered it to have been injudiciously granted in the first instance, or for any similar
The return as extended shows that the license was revoked upon a ground other than that contained in the notice. The decision was based upon matters concerning which the petitioner had never been given an opportunity to answer. American Employers’ Ins. Co. v. Commissioner of Insurance, 298 Mass. 161, 167. People v. Wilson, 179 App. Div. (N. Y.) 416. Such an administrative proceeding is lacking in the “ ‘ rudiments of fair play’ . . . long known to our law.” West Ohio Gas Co. v. Public Utilities Commission of Ohio, 294 U. S. 63, 71. Morgan v. United States, 298 U. S. 468, 478; S. C. 304 U. S. 1, 15. Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U. S. 292, 300.
We think there was error in denying certain requests and in dismissing the petition.
Exceptions sustained.