Commonwealth v. Whelan

Colbukn, J.

The principal question presented in this case is, whether the building described in the exceptions and in the license was, under the facts in evidence, on Shawmut Avenue, within the meaning of the St. of 1882, e. 220. This building was situated at one of the corners of Shawmut Avenue and Chapman Street, bounding upon both streets, and having a door and window, or windows, upon each street, though during the time covered by the license the door and window on Shawmut Avenue were permanently closed by boarding. Before the door and window were boarded up, it could not be questioned that the building was situated on Shawmut Avenue, as well as on Chapman Street. It cannot with any propriety be held that, by boarding up the door and window upon one street, the situation of the building was so changed that it ceased to be on that street.

The fact that the door and window were boarded up to meet the requirements of the police commissioners in relation to the license, can have no effect in this case; the commissioners had no authority to determine, as against the Commonwealth, that the building was situated on one street, rather than on the other, or what facts should fix its situation, within the meaning of the statute. Indeed, it is not apparent that the defendant would have violated the condition of his license, requiring him “to close permanently all entrances to the licensed premises, other than those from the public street, or streets, upon which such premises are situated,” if, as soon as he received his license, he had taken down the boarding and opened the door and window on Shawmut Avenue. The fact that the building is described as No. 28 Chapman Street did not change its situation; it might as properly have been described by its number on Shawmut Avenue. We do not intend now to decide that, in all cases which may arise, a building, some part of which is on a street upon which there is a public school, is on such street within the meaning of the statute; it is sufficient to decide that the building in this case was, within the meaning of the statute, on Shawmut Avenue.

The question is raised whether the evidence introduced was competent and sufficient to show that the building on Shawmut Avenue, which was proved to be within four hundred feet of all parts of the defendant’s premises, was occupied in whole or in part by a public school.

We are of opinion that all the evidence offered upon this subject, including the printed manual prepared under the direction of the school board of the city, was competent, and that it was sufficient, if not conclusive, to prove that the building was in fact occupied by a public school, under the control of the school board of the city; and proof of a public school in fact was all that the statute required.

The defendant’s building being on Shawmut Avenue, and a building on that street within four hundred feet of the defendant’s building being occupied by a public school, the police commissioners were forbidden by the St. of 1882, c. 220, to grant to the defendant a license of the first class to sell intoxicating liquors in his building, and the license issued was void.

To sustain the complaint against the defendant, it was only necessary for the government to prove that he made a sale of lager beer to a man whose name was unknown to the complainant, lager beer being declared to be an intoxicating liquor. Pub. Sts. c. 100, § 27. The defendant, claiming to justify under a license, was required to prove it; Pub. Sts. c. 214, § 12; and this he did prima facie by the production of his license; but when it appeared, by the facts proved in the case, that no license could legally be granted for the sale of intoxicating liquor in the building described in his license, his justification failed, and his sale was illegal.

The rulings of the Superior Court were right.

Exceptions overruled.