This is in response to Joe who told me that the Lawyer I consulted with on my post
ALL or Nothing – Bayliss has No right to Appeal
was wrong and he referenced the case of McDonald v. Justices of the Superior Court, 299 Mass. 321 (1938).
I saw the comment from “Joe” in the blog, and asked someone here to take a look at the case he cites. That someone did so and reports that it appears that Joe’s reliance on that 74-year-old McDonald case seems to be misplaced for a number of reasons. The most salient reason is as follows:
1.According to the City of Lowell website, M.G.L. c. 138, §10 is specifically referenced in connection with the Lowell licensing board.
2.M.G.L. c. 138, § 10 provides that a city “having” a licensing board created “under the provisions of a charter” or by special statute is exempt from the provisions of M.G.L. c. 138, §5 (which allows for review in the superior court). Notably, c. 138, §5 and §10 date back to 1933.
3.If it’s true that the Lowell licensing board was created under the provisions of a charter, and that took place pre-1933 (notably, the City of Lowell Charter was enacted, it appears, in 1911), then pursuant to M.G.L. c. 138, § 10, Lowell should be exempt from the requirements of M.G.L. c. 138, § 5. (The first two assertions would appear to be true because otherwise why would the City cite to §10 on-line? However, we haven’t done the Charter research to confirm this.)
4.In the McDonald case, the court found, “Pittsfield had no licensing board created by or mentioned in its charter, St.1932, c. 280, or in any special provisions of law operative in 1932.” As a result, the court determined that Pittsfield was not one of the cities exempted by the provisions of M.G.L. c. 138, § 10 from the requirements of M.G.L. c. 138, §5.
Attached are the case and the statutes for your reading pleasure.