322 Mass. 413 | Mass. | 1948
This is a petition for a writ of certiorari against the members of the board of selectmen of the town of Topsfield, hereinafter called the respondents, to quash their votes of March 7 and 10, 1947, which purported to rescind a vote of January 25, 1947, approving in accordance with G. L. (Ter. Ed.) c. 128A, § 13A, as amended, the location of a race track for horse racing. The respondents filed a return, and the case was heard upon the petition and the return and upon oral evidence as to (1) what interest, if any, the petitioner had in the premises in question on January 25, and March 7 and 10, 1947, and (2) what action, . if any, the petitioner had taken in reliance on the vote of January 25. The judge ordered judgment to be entered quashing the respondents’ votes of March 7 and March 10, 1947. The respondents excepted to the order for judgment and to the refusal of the judge to grant certain of their requests for rulings.
Facts as to which there was no dispute and those appearing in the return are these: The town of Topsfield is in a county in which at the last biennial election, pursuant to the provisions of G. L. (Ter. Ed.) c. 128A, § 14, as amended, the majority of the registered voters had voted in favor of permitting the pari-mutuel system of betting on licensed horse racing within the county. Within the limits of the town is a piece of property known as the Topsfield Fair
The judge ruled that the votes of March 7 and 10, 1947, purporting to rescind the vote of January 25, were invalid. The respondents by exceptions to the refusal of the judge to grant certain, of their requests have raised the issue of the correctness of this ruling.
We are of opinion that the ruling was right. The judge rested his ruling on the ground that the petitioner in reliance on the vote of January 25 had made substantial expendi-
At the time of the enactment of the statute (G. L. [Ter. EdJ c. 128A, inserted by St. 1934, c. 374, § 3) authorizing and regulating horse and dog racing in the Commonwealth, G. L. (Ter. Ed.) c. 271, § 33, provided in part that “No land within a town shall be laid out or used as a race ground or trotting park without the previous consent of and location by the mayor and aldermen or selectmen, who may regulate and alter the terms and conditions under which the same shall be laid out, used or continued in use and may discontinue the same when in their judgment the public good so requires . . ..” Section 33 stems from, and is substantially the same as, St. 1856, e. 102, § 1. By c. 128A which authorized the licensing of horse and dog races on which the pari-mutuel system of betting was permitted, an important change was made in the laws relating to racing. Under the new statute the control and regulation of all racing where betting was permitted were granted to the newly created State racing commission. The Legislature, however, in enacting c. 128A did not amend or repeal § 33 of c. 271, and the jurisdiction of the local authorities under that section, therefore, conflicted with that granted to the racing commission. To resolve this difficulty the Legislature enacted St. 1935, c. 454, § 8, which added a new section (§ 13A) to c. 128A.
It remains to consider whether the petitioner is in a position to challenge the action of the respondents. It is the general rule that resort cannot be had to certiorari unless the action of the tribunal of which a review is sought has resulted in substantial injury or manifest injustice to the petitioner. Byfield v. Newton, 247 Mass. 46, 58. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 459. Morrison v. Selectmen of Weymouth, 279 Mass. 486, 494-495. Walsh v. District Court of Springfield, 297 Mass. 472, 474. We are of opinion that on this record it could have been found that the action of the respondents in rescinding the vote of January 25 resulted in substantial injury to the' petitioner. The petitioner sought a racing license under c. 128A and had procured an option from the society which gave it the right to obtain a lease of the racing facilities of the Topsfield Fair Grounds. To obtain a license two steps were necessary: (1) approval of the location of the track by the local authorities and (2) the issuance of a license by the racing commission. However, if the revocation of the vote of January 25 were to stand, the license could not be obtained because under § 13A the approval of the location by the local authorities was a condition precedent to the granting of the license. It is true that even if the location were approved the racing commission had “full discretion to refuse to grant . . .
The conclusion we have reached is decisive of the case and makes it unnecessary to discuss the other questions argued by the respondents.
Exceptions overruled.
The option was for a period of twelve months and the lease to be granted was for a term of five years with a privilege of an extension for five years more.
This majority was composed of the newly elected member and one who had opposed the action taken January 25. The third member abstained from .voting.
See also St,. 1935, c. 471, § 2, which provided that no approval under G. L. (Ter. Ed.) c. 271, § 33, was necessary with respect to licenses which had been issued by the commission on or before July 1, 1935.