3 shall be forfeited and disposed of in the manner provided for the 4 forfeiture and disposition of intoxicating liquors; but the court or 5 trial justice may, if deemed for the interest of the commonwealth, 6 order the destruction or sale of said property by any officer qualified 7 to serve criminal process and the proceeds of a sale thereof shall be 8 paid over to the county; and said officer shall make return of the 9 order for such destruction or sale and his doings thereon to the 10 court or justice issuing the same.

1869, 415, § 54.

1876, 162, § 11. S. 100, § 40.

1 SECTION 83. If no person appears and is admitted as a party as Costs. 1855, 215, § 27. 2 aforesaid, or if judgment is rendered in favor of all the claimants G. S. 86, § 52. 3 who appear, the cost of the proceedings shall be paid as in other 4 criminal cases. If only one party appearing fails to sustain his P. 5 claim, he shall pay all the costs except the expense of seizing and 6 keeping the liquor, and an execution shall be issued against him 7 therefor. If judgment is rendered against two or more claimants 8 of distinct interests in the liquor, the costs shall, according to the 9 discretion of the court or trial justice, be apportioned among such 10 parties, and executions shall be issued against them severally. If 11 such execution is not forthwith paid, the defendant therein named 12 shall be committed to jail, and shall not be discharged therefrom 13 until he has paid the same and the costs of commitment, or until he 14 has been imprisoned thirty days.

1852, 322, § 16.

G. S. 86, § 53.

1876, 162, § 12.

1 SECTION 84. A claimant whose claim is not allowed as afore- Appeal. 2 said, and the person complained against, shall each have the same 1855, 215, § 29. 3 right of appeal to the superior court as if he had been convicted of 169, 415, § 55. 4 crime; but before his appeal is allowed he shall recognize to the 1870242 5 commonwealth in the sum of two hundred dollars, with sufficient P. S. 100, § 41. 6 surety or sureties, to prosecute his appeal to the superior court and 7 to abide the sentence of the court thereon. Upon such appeal, any 8 question of fact shall be tried by a jury. On the judgment of the 9 court after verdict, whether of forfeiture of the whole or any part 10 of the liquor and vessels seized, or otherwise, similar proceedings 11 shall be had as are directed in the five preceding sections.

able to superior

1555, 215, $30. 1869, 415, § 56. P. S. 100, § 42.

G. S. 86, 54.

1876, 162, § 13.

1 SECTION 85. If, in the opinion of the court or trial justice before Notice return2 whom a warrant under which liquor has been seized is returnable, court, when. 3 the value of the liquor seized with the vessel containing it exceeds 4 fifty dollars, a notice shall be issued and served as directed in sec5 tions seventy-six and seventy-seven, except that it shall be made 6 returnable to the sitting of the superior court to be held in the 7 county next after the expiration of fourteen days from the time of 8 issuing the notice. The superior court shall have jurisdiction of the 9 case, and may proceed therein in the manner directed in sections 10 seventy-eight to eighty-one, inclusive, and eighty-three, as nearly 11 as may be, and with a jury, upon any issue of facts presented by 12 the claimant or directed by the court.

1 SECTION 86. A mayor, alderman, selectman, deputy sheriff, 2 chief of police, deputy chief of police, city marshal, deputy or assist3 ant marshal, police officer or constable, in his city or town, may 4 without a warrant arrest any person whom he finds in the act of

Arrest without 1855, 215, § 13. 1869, 415, § 57. 1878, 207, § 3.

warrant, when. G. S. 86, § 55.

162, § 14.

1879, 305, § 9.

P. S. 100, $ 43. 147 Mass. 577.

Liquors illegally kept,

illegally selling, transporting, distributing or delivering intoxicat- 5 ing liquor, and seize the liquor, vessels and implements of sale in 6 the possession of such person, and detain them until warrants can 7 be procured against such person, and for the seizure of said liquor, 8 vessels and implements, under the provisions of this chapter. Such 9 officers shall enforce or cause to be enforced the penalties provided 10 by law against every person who is guilty of a violation of which 11 they can obtain reasonable proof of any law relative to the sale of 12 intoxicating liquor. If a sheriff, deputy sheriff, chief of police, 13 deputy chief of police, constable or police officer neglects for two 14 weeks after being furnished with a written notice of a violation of 15 the law relative to the sale of intoxicating liquor and with the 16 names of the witnesses to institute proceedings thereon, any person 17 who thereafter makes complaint shall be entitled to all fines im- 18 posed and collected for said violation. 19.

SECTION 87. All intoxicating liquors which are kept for sale 1 etc., common contrary to law and the implements and vessels actually used in 2 selling and keeping the same, are declared to be common nuisances. 3

nuisances.

1855, 215, § 37.

Club houses to

be common

nuisances.

1881, 226.

1887, 206.

152 Mass. 337. 167 Mass. 13.

173 Mass. 256.

G. S. 86, § 60.

1869, 415, § 62.

1876, 162, § 15.

P. S. 100, § 44.

SECTION 88. All buildings or places used by clubs for the pur- 1 pose of selling, distributing or dispensing intoxicating liquors to 2 P. S. 100, § 45. their members or others shall be deemed common nuisances; and 3 whoever keeps or maintains, or assists in keeping or maintaining, 4 such a common nuisance, shall be punished by a fine of not less than 5 fifty nor more than one hundred dollars and by imprisonment for 6 not less than three nor more than twelve months; but in any city 7 or town in which the inhabitants vote that licenses shall be granted, 8 the licensing board may, upon application therefor, and the pay- 9 ment to the treasurer of such city or town of such a fee as said 10 board may determine, of not less than fifty nor more than five 11 hundred dollars, grant to any club which they may consider a 12 proper organization and not injurious to the welfare, good order 13 and morality of the community, and which has not organized for 14 the apparent purpose of engaging in or giving employment to any 15 of its members by engaging in the business of selling, distributing 16 or dispensing intoxicating liquors to its members or others, a club 17 license authorizing the distributing and dispensing of intoxicating 18 liquors by said club, on the premises occupied by it and to be speci- 19 fied and described in said license, to its members; which license 20 may be revoked at any time. The provisions of sections fifteen, 21 thirty-four and forty-two shall not apply to such licenses.

Charter of club where intoxi

sold or illegal

on may be

1890, 439, § 2. 1893, 226, § 2. 1891, 542.

22

SECTION 89. If any person is convicted of exposing and keeping 1 cating liquor is for sale or selling intoxicating liquor on the premises occupied by 2 gaming carried any club or organization described in section two of chapter one 3 declared void. hundred and twenty-five or of illegal gaming upon said premises, or 4 of being present where implements of gaming are found upon said 5 premises, the selectmen of the town, or the mayor and aldermen of 6 the city, in which such club or organization is situated, except 7 Boston, and in Boston, the board of police, shall immediately 8 notify the secretary of the commonwealth, and he shall, upon re- 9 ceipt of such notice, declare the charter of said club void, and shall 10

11 publish a notice, in at least one newspaper published in the county 12 in which said club or organization is situated, that such incorpora13 tion is void and of no further effect.

1

SECTION 90. The forms heretofore in use may continue to be 2 used in prosecutions under the provisions of this chapter, and if 3 substantially followed shall be deemed sufficient to fully and plainly, 4 substantially and formally describe the several offences in each of 5 them set forth, and to authorize the lawful doings of the officers 6 acting by virtue of the warrants issued in substantial conformity 7 therewith; but the provisions of this section shall not be so con8 strued as to prohibit the use of other suitable forms.

NOTES. Sects. 4-9. St. 1894, c. 428, § 10, provides for the appointment of license commissioners in cities which vote for license subsequent to the passage of the act, in accordance with the provisions of § 2 thereof. A strict compliance with the provisions of § 2 is impossible if the appointment was made subsequent to the first Monday of June, 1896, because § 2 provides that the terms shall be so arranged as to expire at the end of two, four and six years from the first Monday of June in the present year," i. e., 1894. Moreover, the city elections are held in December, and if a city votes in favor of license, the mayor may appoint the commission in December and if the terms of the members run from the first Monday of June in the year in which they are appointed” then they would run from the preceding June, while if the appointments were made after the first day of January, the terms would run from the following June. As the principal work of the commission is to be performed in March and April when applications for licenses are to be received and the licenses granted, it is necessary that the board should be appointed previous to March. It has also been suggested that, by delaying the appointment until May, the mayor could prevent the issuing of licenses for the full year from the first of May notwithstanding the vote of the city. To remove these difficulties the words in February following" have been added in § 9, (St. 1894, c. 428, § 10) and the term which runs two, four and six years from the following June has been made definite by using the words "in the year of their appointment," and it has been provided that the six years' terms of subsequent members shall begin when the previous term expires. This draft, if accepted, will thus provide that when a city, for the first time since 1893, votes in December to authorize the granting of licenses, the mayor will appoint the commissioners in February, who will be authorized to act from the date of their appointment and will hold their offices for two, four and six years respectively from the first Monday of June following, and as each term expires a member will be appointed for the full term of six years from the expiration of the previous term.

Sect. 10. A provision has been added to this section authorizing the mayor and aldermen of cities which do not vote to grant licenses to grant sixth class licenses. St. 1896, c. 397, § 10 contained no such provision, and apparently there is no board authorized to grant sixth class licenses in such cities. The presumption that the omission was inadvertent is supported by the consideration that St. 1897, c. 398, § 1 specifically made such provision for the granting of licenses to dealers in paints and chemicals.

Sects 13, 61. The expediency of limiting the maximum amount of the penalty for a violation of the provisions of these sections is submitted to the legislature.

Sect. 17. It is believed this draft states the existing law accurately. The attention of the legislature is called to the terms of the exception by which wholesale druggists are exempt from the prohibition on election days but not on holidays, and to the fact that innholders are exempt from the prohibition of sales on holidays to duly registered guests under the first three classes of licenses but not under the fourth and fifth classes.

The language of St. 1888, c. 254, relating to holidays describes the persons to whom sales may be made by an innkeeper as bona fide guests or travellers sojourning at his inn" and St. 1888, c. 262 and St. 1898, c. 548, relating to elections describes the persons as duly registered guests". Pub. Sts. c. 100, § 9, cl. 2, relating to the Lord's day describes the same class of persons as

66

guests who have resorted to his house for food or lodging". The word "guest" would probably be construed as the person described in § 9, of c. 100. The legislature probably did not intend to make a distinction between a guest on a holiday and one on election day, but the phraseology of the provisions is quite different. They have been made uniform in this draft by using the expression applicable to the guest on election day as being the later legislation, thus adding to the description of the guest on holidays that he shall be duly registered.

Sect. 18. A seventh class of licenses, analogous to the sixth class, has been added to the list of classes of licenses in order to avoid the uncertainty caused by having three kinds of licenses designated as special, licenses authorized by St. 1887, c. 206; St. 1888, c. 340; St. 1897, c. 398.

Sect. 21. Inasmuch as the effect of St. 1896, c. 397, § 10, is limited to retail dealers Pub. Sts. c. 100, § 2 seems still to be operative as to wholesale dealers. Sect. 22. The words or by the mayor and aldermen of cities having no such board" have been added to this section to conform to the law as provided in Pub. Sts. c. 100, § 5. St. 1896, c. 397, § 10, possibly by inadvertence, made no such provision and apparently there is no board authorized to grant licenses of the sixth class in cities which do not vote to authorize the granting of licenses, although the power to issue such licenses is given to selectmen of towns. See also note to section 10.

Sect. 24. The word "wife" has been added to supply an apparent omission, since no person is mentioned in St. 1896, 397, § 12 who takes the place of the licensee in case of his incapacity.

Sect. 33. This provision was originally enacted in 1852 and exempted from the operation of the state law the rights then existing under the laws of the United States. By Act of Congress of Aug. 8, 1890, c. 728, intoxicating liquors, upon arrival in any state, become subject to the operation of the laws thereof which are enacted in the exercise of its police powers, and the act allows the state law to be made applicable before sale by the importer to property brought into the state, when formerly it could not so attach until after such sale.

Sect. 53. By St. 1889, c. 114 the penalty prescribed by Pub. Sts. c. 100, § 18 was changed from fine or imprisonment to fine and imprisonment. While a strict construction of Sts. 1882, c. 221, § 4 and c. 242 intervening between the Public Statutes and the St. of 1889, which referred to § 18 for the penalty and did not specifically provide for the amendments to § 18, might require the conclusion that the amendment of 1889 did not apply to these acts, it is thought the intent of the law was clearly the other way and the penalty has therefore been made uniform, in accordance with the St. of 1889.

The statutes passed subsequent to the St. of 1889 are of two classes:

First, Those which refer to Pub. Sts. c. 100, § 18 for the penalty; and as to these the commissioners think there can be no doubt that the amendment of 1889 is applicable.

66

Second, Those which, instead of referring to Pub. Sts. c. 100, § 18, use its language and thus specifically enact the penalty as fine or imprisonment.” These have been preserved in section 54, but as the use of the identical language of 18 suggests that when it was used the St. of 1889 may have been overlooked, it is recommended that § 54 be omitted and the uniform penalty prescribed by the St. of 1889 be applied to all cases under this chapter, as was the case in the Public Statutes.

The strict construction before stated might also produce the result that the penalties would be different for the violation of different provisions of the same license. In these cases uniformity has been secured by simply providing the penalty for the violation of any provision of the license.

Sect. 83. The provisions of this section relative to costs have not been changed as it is doubtful whether St. 1890, c. 440 is applicable to these proceedings. While it provides that "no costs, by that name, shall be taxed against a defendant in any criminal proceeding," the only substitute provided in that act is the imposition of an increased fine for which this section makes no provision. Sect. 90. It seems unnecessary to reprint the forms which are annexed to Pub. Sts. c. 100, § 46, and they have therefore been omitted, but their validity and sufficiency for future use are preserved by this section. They were originally prescribed by St. 1855, c. 397 to be used under St. 1855, c. 215, and were re-enacted in Gen. Sts. c. 86, § 63, St. 1876, c. 162, § 17 and in Pub. Sts. c. 100, § 46.

St. 1855, c. 215 provided for new methods of procedure and it was wise to provide forms therefor; but those forms have become familiar to clerks of courts and to officers who have occasion to use them, and, as printed blanks are in common use and have largely superseded the necessity of reference to the statute from which the forms are taken, it is believed the space which they occupy in the statutes can be saved without inconvenience.

66

Sts. 1780, c. 47; 1783, c. 40 and 1784, c. 28, which prescribed forms of writs in civil causes, were omitted from the Revised Statutes and the commissioners in a note appended to c. 90, §§ 1-9 of their report, after saying they thought it best not to insert the forms of any writs, but to adopt those in use, with authority in the court to make alterations, added, The forms of all the writs in common use, as well those prescribed by statute as others, are to be found in every clerk's office, and would not be better known by being inserted in the code." Rev. Sts. c. 90, § 8 provided that the forms of writs in civil actions shall be the same as have heretofore been established by law and by the usage and practice of the courts," etc. Gen. Sts. c. 123, § 14; Pub. Sts. c. 161, § 18.

66

It is believed no inconvenience has been experienced by omitting the forms of civil writs from the revision of 1836 and from subsequent revisions, and that none will be experienced by the omission from this revision of forms in cases under the liquor law. The legal effect of this section will be the same as to forms under the liquor law as that which the Rev. Sts. c. 90, § 8 and its re-enactments had as to forms in civil cases.

1

CHAPTER 101.

OF COMMON NUISANCES.

gerous build

1855, 469, §§ 1, 6

P. S. 101, § 1.

SECTION 1. In a city or town in which the city council or the Burnt or dan 2 inhabitants accept the provisions of this and the four following fngs, how 3 sections or have accepted the corresponding provisions of earlier disposed of 4 laws, the mayor and aldermen or selectmen, after notice in writing G. S. 87, § 1. 5 to the owner of a burnt, dilapidated or dangerous building, and a 6 hearing, may adjudge it to be a nuisance to the neighborhood, or 7 dangerous, and may thereupon make and record an order prescrib8 ing the disposition, alteration or regulation thereof. The city or 9 town clerk shall deliver a copy of the order to a constable, who 10 shall forthwith serve an attested copy thereof upon such owner, 11 and make return of his doings thereon to said clerk.

1

aggrieved may

1855, 469, § 3. 1873, 261.

SECTION 2. An owner who is aggrieved by such order may, Owner 2 within three days after the service thereof upon him, apply to the apply for jury. 3 superior court for a jury. The court shall issue a warrant for a G.3.8, 2. 4 jury, which shall be impanelled by the sheriff within fourteen days .. 101, § 2. 5 after the date of the warrant in the manner provided in chapter 12 Mass. 36, 6 forty-eight; or, instead thereof, if the applicant for a jury so elects 7 and after such notice as the court shall order to the adverse party, 8 it shall order a trial to be had at the bar of the superior court, in

9 the same manner as other civil causes are there tried by jury.

1

SECTION 3. The jury may affirm, annul or alter such order; and 2 the sheriff, if the trial is before him, shall return the verdict to 3 the next sitting of the court for acceptance; and the verdict, whether 4 before the sheriff or in the superior court, being accepted, shall take 5 effect as an original order.

347.

Verdict of
1855, 469, § 4.
1873, 261.
P. S. 101, § 3.

jury, etc.

G. S. 87, § 3.

Costs.

1855, 469, § 5.

1

SECTION 4. If the order is affirmed, the applicant shall pay the 2 costs; if it is annulled, he shall recover damages and costs against G. S. 87, § 4.

P. S. 101, § 4.