Ferris v. Board of Selectmen

183 N.E.2d 301, 344 Mass. 757

Opinion

Final decree reversed. A new final decree is to be entered declaring that the defendant board of selectmen is not required to issue an alcoholic beverage license to the plaintiff. This is a bill in equity for a declaratory decree. G. L. c. 231A. The plaintiff, the owner of a restaurant in Horwell, is the holder of a common victualler’s license. The defendants are the board of selectmen and the Alcoholic Beverages Control Commission established under G. L. c. 6, § 43 (as amended through St. 1950, c. 785). The bill alleges that there is a controversy whether the defendant board of selectmen under G. L. c. 138, § 12 (as amended through St. 1959, c. 480), must issue to the plaintiff a common victualler’s license for the sale of all alcoholic beverages. Ho such license has ever been issued in Horwell. The defendant board of selectmen has refused to issue a license to the plaintiff notwithstanding (1) that the town regularly votes “Yes” on all liquor questions on the ballot, (2) that the plaintiff is the only applicant, and (3) that the defendant commission has rendered a decision recommending that the license should issue. The judge ruled that there is a discretion in the board of selectmen as to whether the license should issue. From a final decree dismissing the bill, the plaintiff appealed. There was no error on the merits. Largess v. Nore’s, Inc. 341 Mass. 438, 442. See G. L. c. 138, § 11 (as amended through St. 1947, c. 138, § 3). The bill should not have been dismissed, however. Vasilakis v. Haverhill, 339 Mass. 97,101.