338 Mass. 699 | Mass. | 1959
On May 29, 1957, Court Square Cafe, Inc. (hereinafter called Court Square), held licenses authorizing it to conduct the business of a common victualler, and to sell all types of alcoholic beverages to be drunk on its premises in Springfield. See G. L. c. 140, §§ 4, 6; G. L. c. 138, § 12. On that day Court Square petitioned the board of
Thereafter the association and seven individuals, all described as residents and voters and, with some exceptions, as taxpayers in Springfield, filed a petition in the Superior Court naming the members of the commission as respondents. The gravamen of this petition is that the provisions of G. L. c. 138, § 12, do not authorize the issuance of a common victualler’s license and an all alcoholic beverages license, to be used in conjunction therewith, to Legion Post and that the charter of Legion Post does not authorize it to hold such licenses. The petition contains this statement, “Your petitioners, being doubtful on the facts of the case, as to whether relief should be sought by a petition for review as provided for in . . . [G. L. c. 30A, § 14] or whether it should be in the form of a petition for writ of certiorari under . . . [G. L. c. 249, § 4, as extended by G. L. c. 213, § 1A] and therefore have drawn this petition with a double aspect.” The respondents demurred to the petition on various grounds, including those of multifariousness and mis
There was no error.
1. We shall first consider the petition as one for review under the State administrative procedure act. G. L. c. 30A. We have no doubt that the commission is an agency as defined in § 1 (2) of that act, and that in an appropriate case the provisions of that act dealing with judicial review would apply to the determinations of the commission, since the statute governing intoxicating liquors (c. 138) does not expressly preclude judicial review and does not provide a statutory form of judicial review or appeal. See G. L. c. 30A, § 14.
Section 14 of the act provides for judicial review of the final decisions of administrative agencies only if such decisions were reached in adjudicatory proceedings. “Adjudicatory proceeding” is defined in § 1 (1) as “a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.” The petitioners invoke no constitutional right, and it is plain that G. L. c. 138 is the only statute applicable here. The provisions of that chapter dealing with the transfer of licenses are as follows: “Any license under this chapter held by an individual, partnership or corporation may be transferred to any individual, partnership or corporation qualified to receive such a license in the first instance, if, in the opinion of the licensing authorities, such transfer is in the public interest. If the local licensing authorities determine that an
The decision in question here is the determination by the licensing authorities
Since no hearing was required by any provision of law, the petitioners were not entitled to a judicial review under G. L. c. 30A, § 14. Hayeck v. Metropolitan Dist. Commn. 335 Mass. 372. In view of this conclusion we do not reach the question whether if this was an adjudicatory proceeding the petitioners would be persons aggrieved within the purview of § 14. In so far, therefore, as the petition sought judicial review under G. L. c. 30A, § 14, it was rightly dismissed.
2. We turn now to a consideration of the petition as one for a writ of certiorari. A petition for a writ of certiorari will not be granted unless action of the tribunal of which review is sought has resulted in substantial injury or manifest injustice to the petitioner. Loranger v. Martha’s Vineyard Regional High Sch. Dist. Sch. Comm., ante, 450, 459, and cases cited therein. Mitchell v. Civil Serv. Commn. 335
There is no showing that the individual petitioners were injured in any manner by the transfer. The phrase “some of the petitioners” doubtless refers to the association whose purposes are described in the petition as “to protect the interests of its constituent members, both economically and ethically. . . .”
The fact that a petitioner may suffer from business competition gives him no standing. Colantuoni v. Selectmen of Belmont, 326 Mass. 778, 779. Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 429.
3. Finally the petitioners, in the event that they cannot maintain their petition under c. 30A, § 14, or in certiorari, ask leave to amend their petition into a petition for a writ of mandamus. G. L. c. 213, § 1C. This request is grounded on the assertion that G. L. c. 138, § 12, properly construed, does not authorize the issuance of an all alcoholic beverages license to an organization of the character of Legion Post. In seeking to proceed in mandamus the petitioners invoke the doctrine of Brewster v. Sherman, 195 Mass. 222, 224. We need not decide whether that doctrine would be applicable here because in the present posture of the case we are convinced that it ought not to be disposed of by permitting the amendment requested. Legion Post, which has an important interest in the challenged licenses, is not before the court and its rights ought not to be affected in a proceeding in which, so far as appears, it has had no opportunity to intervene and be heard. See Martin v. Smith, 280 Mass. 101, 106.
5. The order dismissing the petition must be affirmed.
So ordered.
The correctness of this ruling is not before us, and therefore we do not consider the question of the propriety of the petition from the pleading standpoint.
General Laws c. 138, § 1, defines "[TJicensing authorities” as “the commission or the local licensing authorities, or both, as the case may be.”