Commonwealth v. Hayes

20 N.E. 456, 149 Mass. 32, 1889 Mass. LEXIS 108

Opinion

Field, J.

It is conceded that the St. of 1888, c. 340, went into effect on June 14, 1888. Pub. Sts. c. 3, § l.

Footnotes

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† By the Pub. Sts. c. 100, § 5, a city at its annual municipal election, or a town at its annual meeting, may vote to authorize the granting of licenses for the sale of intoxicating liquors of the first five classes, and the licenses so granted “shall continue in force until the first day of the May next ensuing, unless sooner forfeited or rendered void.” By the St. of 1883, c. 93, the licensing board of any city or town may receive applications for licenses during the months of March and April, and may during the month of April grant licenses to take effect on the first day of the following month of May. The annual meeting of every town must be held in February, March, or April. Pub. Sts. c. 27, § 53.

It must have been known to the Legislature when the St. of 1888, c. 340, was passed, that the towns and cities in the Commonwealth had already voted upon the question whether licenses should be granted for the year beginning May 1, 1888, and that in those towns and cities which had voted “ Yes ” on this question many licenses had already been granted which, under the laws then existing, would continue in force until the first day of May, 1889, unless sooner forfeited or rendered void. It is conceded that licenses are not contracts, and that existing licenses might be annulled by an act of the Legislature, and that if the intention of the St. of 1888, c. 340, was to annul all licenses existing when it went into effect, then, so far as appears from the report, the defendant’s was the first and only license granted under the St. of 1888, c. 340, and was valid.

The general rule undoubtedly is, that statutes are to be considered as prospective only in their operation, unless they are expressly made retroactive, or unless it is necessary to construe them as retroactive in order to give effect to their provisions. North Bridgewater Bank v. Copeland, 7 Allen, 139. Shallow v. Salem, 136 Mass. 136.

It is one contention of the counsel of the defendant that the statute was intended to regulate the granting of licenses for the year beginning May 1, 1889, and the subsequent years, and not for the remainder of the year beginning May 1, 1888, and that it must be construed as if the first clause read “ for all towns and cities which hereafter vote to grant licenses,” etc.

The attorney for the Commonwealth contends that in passing this statute it was not the intention of the Legislature either to postpone the operation of the statute until the next licensing year, or to annul all licenses which had been previously granted for the current year; that the statute should be applied to the facts as they existed in each city and town at the time it took effect; and that if at that time the number of places lawfully licensed in any city or town equalled or exceeded one for each thousand of the population, no license should thereafter be granted for that year, because, if granted, it would be “ in excess of the provisions of this act.”

The clause of the statute which reads “No more than one such place shall be licensed by any one vote of the licensing board, such licenses shall be numbered in regular order as granted, and any license granted contrary to or in excess of the provisions of this act shall be void,” plainly relates to licenses granted after the act took effect, and we are of opinion that, in determining whether a license thereafter granted is “ in excess of the provisions of this act,” licenses lawfully granted for the current year before the act took effect, and not otherwise forfeited or rendered void, must be counted. Such a' construction neither renders the act retroactive, nor postpones the operation of it beyond the time when it took effect. As the license under which the defendant justified was granted after the act took effect, and as the licenses previously granted and in force for the current year exceeded the number permitted by the act, the defendant’s license was void.

Judgment on the verdict.

This statute provides that an act, if it does not expressly prescribe the time when it shall go into operation, shall take effect on the thirtieth day next after the day on which it is approved.