Commonwealth v. Barnes

5 N.E. 252, 140 Mass. 447, 1886 Mass. LEXIS 64

• Court: Massachusetts Supreme Judicial Court
• Decided: January 7, 1886
• Status: Published

Opinion

Holmes, J.

We are of opinion, that, when a man is expressly licensed to sell intoxicating liquors “ in the front room and rear room ” of a certain floor of a building, and is not required by the licensing board to remove the partition between the two rooms, that partition is not within the provisions of the Pub. Sts. c. 100, § 12, and the St. of 1882, c. 259, § 1, although it may obstruct the view of the interior of one or the other of such rooms from the public street.

By the Pub. Sts. e. 100, § 6, the notice of application is to designate “ the building or part of a building to be used.” By § 9, fifth, the license shall specify “ the room or rooms in which such liquors shall be sold or kept by a common victualler. No person licensed as aforesaid, and not licensed as an innholder, shall keep, sell, or deliver any such liquors in any room or part of a building not specified in his license as aforesaid.” This language plainly imports that a license may be granted to sell liquors, not only in one room, but in more than one. If in one room alone, that room may be any room in the building, so far as any direct expression of the statute goes. If more than one are licensed, they must be separated by a partition, which may and probably will interfere with a view of the interior of one of them. As the statute seems to us to contemplate these possibilities, and to leave them to the discretion of the licensing board, we cannot read the provision, that the board shall require the licensee to remove any obstruction which may interfere with a view of the interior of the licensed premises, as limiting their power to license, or as requiring that all licensed premises shall be, or be turned into, front rooms on the lower story, any more than as requiring that the whole front of the building shall be of glass. We think that a license might be granted to use a room on the second floor, or a back room, or a room lighted only by a skylight. A fortiori, we are of opinion that the prohibition against the licensee maintaining any partition “ upon any premises used by him for the sale ” does not apply to leaving in statu quo the walls of the several premises contemplated by the license as remaining distinct.

Exceptions sustained.

*

Similar decisions were made on the same day, in Middlesex, in the cases of

Commonwealth vs. James J. Flannery ;

Same vs. Michael McGrath;

Same vs. Edward Donahue, Jr. ;

and

Same vs. Israel Sansville,

J. B. Goodrich, for Flannery.

J. J. Sullivan, for McGrath.

W. B. Gale $• J. W. McDonald, for Donahue and Sansville.

H. N. Shepard, Assistant Attorney General, (E. J. Sherman, Attorney General, with him,) for the Commonwealth.

By the Court. These cases are governed by Commonwealth v. Barnes, ante, 447. Exceptions sustained.