Paul v. Selectmen Scituate Et Al‪.‬

COX, Justice. This is a petition for a writ of mandamus, directing certain of the respondents, as they are the board of selectmen of the town of Scituate, to revoke a victualer's license issued on March 9, 1937, to one Michael P. Zullas, an intervening respondent, for use on premises owned by Zullas in said town, and further directing the respondent selectmen to apply for an injunction to restrain any violation by Zullas of a zoning by-law of the town, and to take such further steps as may be required to enforce the by-law, in so far as it applies to his premises. The case was heard by an auditor, whose report is made a part of the bill of exceptions, and it then came on to be heard before a single Justice, on the auditor's report, and also on a stipulation of the parties, the material portion of which relates merely to the required publication of a copy of the zoning by-law before it can take effect. G.L.(Ter.Ed.) c. 40, § 32, as amended by St.1933, c. 185, § 1. The single Justice made certain findings of fact and rulings of law, refused to make others, and ordered the petition dismissed as a matter of law. The petitioner's exceptions relate to the denial by the single Justice of certain requests for findings of fact and rulings of law, and to the 'denying' and 'dismissing' of the petition. The single Justice found that, some time about the year 1902, 'Dreamwold' was designed and constructed in Scituate as a residence of Thomas W. Lawson, and was occupied by him and his family solely as a residence until 1922. From 1922 to 1926 it was unoccupied. In 1926, it was purchased by one Dailey and his wife, who 'used' it as a restaurant and resided there until 1933, when its use as a restaurant was discontinued. In the 'operation' of 'Dreamwold' as a restaurant, the Daileys made no structural changes except to enlarge the kitchen by tearing out a part of its wall and enclosing a portion of the adjoining piazza. They also walled up a portion of this piazza and installed a large refrigerator. Dining tables and chairs were set up in what had been the library, billiard room, conservatory and entrance hall. Dailey filed a petition in bankruptcy in February, 1934, and his assets were sold prior to April 13, 1934, by his trustee in bankruptcy. On that date a mortgage on the real estate was foreclosed by sale. From 1933, to January, 1935, 'Dreamwold' was unoccupied except by a caretaker, who did not remain there during the nighttime. There was no change in the design or structure of the building until after May 1, 1936, and there was no repair, alteration, or change in design until after that date which in any way changed 'Dreamwold' from a residence to a different type of structure. On March 2, 1936, the building was the same as it had been during its occupancy by Mr. Lawson with no substantial or material change. No victualer's license for the premises was issued from 1933 to 1937.