Walenz v. Alcoholic Beverages Control Commission

7 N.E.2d 581, 297 Mass. 133, 1937 Mass. LEXIS 731
CourtMassachusetts Supreme Judicial Court
DecidedMarch 30, 1937
StatusPublished
Cited by2 cases

This text of 7 N.E.2d 581 (Walenz v. Alcoholic Beverages Control Commission) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walenz v. Alcoholic Beverages Control Commission, 7 N.E.2d 581, 297 Mass. 133, 1937 Mass. LEXIS 731 (Mass. 1937).

Opinion

Pierce, J.

This is a petition for a writ of certiorari, reported to this court by a single justice upon the petition and a demurrer. No return was filed by the respondents, but “It is hereby agreed and stipulated that the petition for the writ of certiorari contains the full and accurate [134]*134record of the entire proceedings and actions of the respondents . . . .”

The petitioner seeks to quash the action and proceedings of the respondents in denying the appeal of the petitioner from the refusal of the licensing board of the city of Med-ford to grant to him a renewal of his license to sell alcoholic beverages as a registered pharmacist under the provisions of § 30A of G. L. c. 138, in the amended form appearing in St. 1935, c. 440, § 26.

The petitioner is a retail druggist who, as a registered pharmacist, is actively engaged in the business on his own account in the city of Medford. In 1936 he was the holder of a license, issued to him by the licensing authorities of the city of Medford, which permitted him to sell all alcoholic beverages in original sealed packages only, not to be drunk on the premises. The petitioner duly and seasonably applied for a renewal of the license, which was denied by the local licensing authorities, and thereupon he duly and seasonably appealed to the respondents, as provided by § 67 of G. L. c. 138, in the amended form appearing in St. 1935, c. 440, § 42. This appeal, after hearing, was denied by the respondents "on the ground that as a matter of law the Commission cannot lawfully order the said Licensing Board to issue a license to the appellant under the said Section [said § 30A] in view of the vote taken at the biennial state election in the City of Medford on November 3, 1936. At the said election a majority of the voters voting thereon voted ‘No’ on Questions 1 and 2 and ‘Yes’ on Question 3 as appearing upon the ballot used in the said election. Questions 1, 2 and 3 were those set forth in Section 11 of Chapter 138 of the General Laws as most recently amended by Chapter 207 of the Acts of 1936.”

The petitioner contends that although the voters of said city of Medford voted “No” upon the first question with relation to licenses, they voted "Yes” upon the third question with relation to licenses submitted to them upon said ballot, and that, therefore, the petitioner was entitled to have a druggist’s license issued to him under the provisions of said § 30A. The petitioner states that the respondents [135]*135contend that, despite the fact that a majority of the voters of the city of Medford voted “Yes” on question 3, which authorizes the issuance of licenses for the sale in the city of Medford of all alcoholic beverages in packages, so called, not to be drunk on the premises, said question 3 should be construed as permitting the issuance of licenses for the sale of all alcoholic beverages in packages, so called, to be sold only in package goods stores and not in drug stores, although under the provisions of said § 30A all alcoholic beverages are authorized to be sold by retail druggists, only in the original sealed packages, not to be drunk on the premises.

The single issue involved in the case is whether question 3 as contained in G. L. c. 138, § 11, in the amended form appearing in St. 1936, c. 207, upon which question a majority of the voters of, the city of Medford voted “Yes,” should be restricted in its application to package goods stores, so called, which may be licensed to sell alcoholic beverages in packages only, not to be drunk on the premises, or whether it is applicable also to retail druggists who are authorized under said § 30A, to sell alcoholic beverages in the same way, namely, in packages only, not to be drunk on the premises.

Concerning this issue, it is the contention of the petitioner that said question 3 applies to all dealers in alcoholic beverages sold in packages not to be drunk on the premises. It is the contention of the respondents that under the provisions of said § 30A the petitioner is not entitled to a license to sell alcoholic beverages without a physician’s prescription, as a registered pharmacist, unless the voters of the city in which he did business had voted in the affirmative upon the first question submitted to them upon the ballot; and that it is immaterial that they voted “Yes” upon the third question submitted to them on the ballot in view of the fact that they had voted in the negative upon the first question.

The respondents direct attention to the fact that said § 30A, under which the petitioner applied for his pharmacist’s license, was approved on July 25, 1935; that at that time there was in existence, with relation to the granting [136]*136of licenses to sell alcoholic beverages in cities or towns, only a statutory provision for submitting two questions to the voters of such cities or towns for determining whether licenses should be granted therein. This statutory provision was contained in § 11 of G. L. c. 138, as appearing in St. 1933, c. 376, §2:

"... Section 11. The state secretary shall cause to be placed on the official ballot used in the cities and towns at each biennial state election the following questions: —
“1. Shall licenses be granted in this city (or town) for the sale therein of all alcoholic beverages (whisky, rum, gin, malt beverages, wines and all other alcoholic beverages)? YES. NO.
“2. Shall licenses be granted in this city (or town) for the sale therein of wines and malt beverages (wines and beer, ale and all other malt beverages) ? YES. NO.
“The following directions shall also be placed on said ballot immediately above the foregoing questions: —
“To obtain a full expression of opinion, voters should vote on both of the following questions, (a) If a voter desires to permit the sale of any and all alcoholic beverages in this city (or town) he will vote ‘ YES ’ on both questions.
“ (b) If he desires to permit the sale of wines and malt beverages only herein, he will vote ‘NO’ on question 1 and ‘YES’ on question 2.
“(c) If he desires to prohibit the sale of any and all alcoholic beverages herein, he will vote ‘NO’ on both questions.
“If a majority of the votes cast in a city or town in answer to question one are in the affirmative, such city or town shall be taken to have authorized, for the two calendar years next succeeding, the sale in such city or town of all alcoholic beverages, subject to the provisions of this chapter.
“If a majority of the votes cast in a city or town in answer to question one are not in the affirmative, but a majority thereof in answer to question two are in the affirmative, such city or town shall be taken to have authorized, for [137]*137said calendar years, the sale therein of wines and malt beverages only, subject to the provisions of this chapter.”

Said § 30A, approved July 25, 1935, reads:

“A registered pharmacist in a city or town wherein the granting of licenses to sell all alcoholic beverages is authorized may be licensed by the local licensing authorities to sell alcoholic beverages for medicinal, mechanical or chemical purposes without a physician’s prescription subject to the limitations contained in section thirty-three, the said sales to be recorded in the manner prescribed in section thirty E.

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Related

Barnette v. Commercial Union Insurance
55 Mass. App. Dec. 3 (Mass. Dist. Ct., App. Div., 1974)
Coyne v. Alcoholic Beverages Control Commission
44 N.E.2d 692 (Massachusetts Supreme Judicial Court, 1942)

Cite This Page — Counsel Stack

Bluebook (online)
7 N.E.2d 581, 297 Mass. 133, 1937 Mass. LEXIS 731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walenz-v-alcoholic-beverages-control-commission-mass-1937.