Andres v. Justices of the Municipal Court

De Courct, J. The application of Lawrence Kennedy and Company for a first class license to sell intoxicating liquors as victuallers described the premises for which the license was sought as follows: "No. 408 Massachusetts Ave. and rear entrance to cellar, .in said Boston, in one room and office, first floor, cellar and súbcellar for stock only, of said building.” When the application was filed the wall in the cellar separating the storeroom of Kennedy and Company from the space used by other tenants of the building was forty-eight feet, and the wall in the subcellar was fifty-two feet and ten inches from the premises of the petitioner Andres. A substantial stud partition divided the first floor so that the portion occupied by Kennedy and Company was twenty-six feet and two inches from the premises of Andres.- The judge of the Municipal Court found that “the licensing board intended to license and did license only such walled off portion of each floor as" shown within the heavy white lines "on each plan, and the entrance to the subcellar used by Kennedy indicated by ‘E’ on plan ‘P 3’;” and also that “no part of the premises licensed for the year beginning May 1, 1915, is within twenty-five feet of the applicant’s [Andres’s] premises.” Finding that the license was issued legally, he -ordered that the petition to revoke it be dismissed. The petitioner, by a petition for a writ of certiorari, seeks to have the order of the judge revoked and the license of Kennedy and Company for the year 1915, declared void, on the ground that the application described premises within twenty-five feet of his real estate. Without further considering the merits of his con [457] tention, the following facts are important on the question of his right to invoke this extraordinary and discretionary writ. When Kennedy and Company applied for a license for the year beginning May 1,1914, Andres duly filed an objection to the granting of it. Apparently he took no further action, as the licensing board issued the license and it expired of its own limitation. The license now in question was applied for on February 16, 1915; notice of the application was published on March 13; Andres duly filed his objection on March. 23; and the licensing board granted the license on April 16,1915. Under the provisions of R. L. c. 100, § 15, as amended by St. 1906, c. 287, this petitioner then could have applied to the Municipal Court for a hearing; and as Kennedy and Company had not held a license in that place for .the two years next preceding, if it appeared that he, Andres, was "the owner of any real estate within twenty-five feet of the premises described in-[Kennedy’s] application for a license to be exercised by a com°mon victualler to sell liquors to be drunk on the premises,” it would have been the duty of the judge to revoke the license and -send notice thereof to the licensing board. But the petitioner’s application, if made, should be made promptly. The Legislature, recognizing that the licensee in such a case is without fault, provides that the city shall refund to him the money expended for his license and his court fees and costs. And if, as the petitioner contends, the license was issued illegally and void, delay in establishing that fact might render Kennedy and Company civilly or criminally liable for the illegal sale of intoxicating liquors. See Cheney v. Coughlin, 201 Mass. 204. Nevertheless it appears that the petitioner did not petition the Municipal Court for the revocation of the license until March 14, 1916, when the license year had almost expired. His petition was dismissed April 18,1916; and judgment was entered May 12,1916.' When the present petition for a writ of certiorari was filed, namely, May 23,1916, the license which the petitioner seeks to have revoked had expired of its own limitation. The only suggested advantage which this petitioner would gain by a declaration that the license in question was invalid is that he then could prevent the issuing of a new license; as Kennedy and Company would not have held a license “for the two years next preceding the date” of their application. But the statute (R. L. c. 100, § 15, as amended) [458] still gives him the same power, if it shall appear to the satisfaction of the judge of the Municipal Court “either that said objections are made in good faith or that the granting of said license and the business carried on thereunder will be a detriment to the reasonable use and enjoyment of such real estate of said objecting owner.” In these circumstances, regardless of the merits of the petitioner’s attack on the license, substantial justice does not require the granting of this discretionary writ on behalf of one who, with full knowledge of all the facts, and for no apparent reason, allowed the licensee to carry on his business unquestioned until the license in question had almost expired. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 212. Noyes v. City Council of Springfield, 116 Mass. 87. Rudnick v. Murphy, 213 Mass. 470. Petition dismissed.