318 Mass. 385 | Mass. | 1945
This is a petition for a writ of certiorari to quash the revocation of a license granted to the petitioner by the municipal council of Gloucester to construct and maintain a fish trap “at Cod Rock off Lanesville Shore.” A similar licefise to maintain this trap had been granted in 1937 to one Elbridge Woodbury for the term of five years, but the petitioner, having acquired this trap from Elbridge Woodbury, returned the license which had been issued to Elbridge Woodbury, and that license was later mailed to him by the city clerk who also enclosed a form for an application for a new license. The petitioner made out the form and was granted a license on February 5, 1941. This license was approved by the department of public works of the Commonwealth in accordance with G. L. (Ter. Ed.) c. 130, § 20, as appearing in St. 1933, c. 329, § 2. The municipal council granted a license to one Johnson in October, 1942, to construct and maintain a fish trap at the location described in the license of the petitioner. Both the petitioner and Johnson appeared before the municipal council in the summer of 1943. Each claimed the right to maintain a trap at the same location. The council was advised by the director of the division of marine fisheries that the petitioner had prior rights to the location and that it should revoke Johnson’s license. That license was revoked on September 15, 1943. Counsel for Johnson appeared before the council in November, 1943, and June, 1944, and contended that the council had no authority to grant a license to the petitioner because Elbridge Woodbury had not at that time surrendered a permit which'he had received from the war department of the United States consenting to his maintenance of the fish trap. The municipal council notified the petitioner to appear and show cause why his license should not be revoked. At the conclusion of the hearing, on August 9, 1944, one member of the council moved that the license be revoked because it was granted while the license to Elbridge Woodbury was in effect. This motion was seconded and carried. The council on
The petitioner contends that the municipal council had no power to revoke his license but that, if it had, the cause for revocation was insufficient in law to justify its action.
General Laws (Ter. Ed.) c. 130 was struck out by St. 1933, c. 329, § 2, and a new chapter was substituted therefor. See now § 29 of G. L. c. 130 as appearing in St. 1941, c. 598, § 1, which took effect after the granting of the license to the petitioner on February 5, 1941. The petitioner’s license was granted in accordance with § 20 of the chapter substituted in 1933, which provides that the aider-men of a city lying upon tidewater may in writing authorize any person to construct a fish trap in tidewater in a location within the city for a term not exceeding five years upon such conditions and subject to such regulations as they, in their discretion, may impose, but that such authority or license shall not be valid unless approved by the department of public works of the Commonwealth upon such terms and conditions as the said department may, in its discretion, impose. This section does not expressly provide for a revocation of the license. It has been held that, even in the absence of such a provision, a statute authorizing the grant of a license that amounts to no more than a mere personal privilege also authorizes the revocation of the license. Sullivan v. Borden, 163 Mass. 470. Doyle v. Continental Ins. Co. 94 U. S. 535, 540. State v. Pulsifer, 129 Maine, 423. McKenzie v. McClellan, 62 Misc. (N. Y.) 342.
The site of the fish trap which the petitioner was permitted by his license to construct and maintain was located in navigable waters upon which the public had a right to travel in boats. Commonwealth v. Charlestown, 1 Pick. 180. Commonwealth v. Chapin, 5 Pick. 199. Blood v. Nashua & Lowell Railroad, 2 Gray, 137. Commonwealth v. Vincent, 108 Mass. 441, 445-446. An obstruction to navigation in tidal waters constitutes a public nuisance unless authorized by an appropriate governmental agency. Attorney General
The record, however, shows that no ground existed for the revocation of the license. It is not contended that the petitioner was guilty of any misconduct in the maintenance of the trap. It is not suggested that the continuance of the trap would be detrimental to the public interest. Such a reason could hardly be advanced in view of the fact that within a week of the revocation of the petitioner’s license a new license for the same location was issued to Johnson. Johnson’s license had been revoked the previous year by the municipal council because the maintenance of his trap interfered with the operation by the petitioner of his own trap. The petitioner’s rights in the location were then found to be superior to those of Johnson. There is nothing in the suggestion that the petitioner’s license was not for the full period of five years. The only ground for the vote to revoke the petitioner’s license was that the license of Elbridge Woodbury was outstanding when the license was granted to the petitioner. The existence of that ground is negatived by the return filed by the respondents. The petitioner had returned the outstanding license of Elbridge Woodbury, and the city clerk had mailed this license together with the application for a new license to the petitioner. The municipal council then renewed in the name of the petitioner the license formerly held by Elbridge Wood-bury. It appears also from the return that the petitioner had a Federal permit for the location. See U. S. C. (1940 ed.) Title 33, § 403. Elbridge Woodbury was not obliged to maintain the fish trap during the entire term of his license. He could, as he undoubtedly did, abandon the business at any time before the expiration of his license, and in that event the municipal council could grant a new license to
Judgment is to be entered quashing the decision of the respondent council revoking the petitioner’s license.
So ordered.