Exceptions sustained. This petition for a writ of mandamus was brought in the Superior Court. The petitioners are registered voters of the town of Wilmington. The respondents constitute the Alcoholic Beverages Control Commission established by G. L. (Ter. Ed.) c. 6, Section 43. See St. 1933, c. 120, Section 2; St. 1933, c. 375, Section 1. The petitioners pray for a writ commanding the respondents "to examine into the matter of the alleged illegal issuance of the so called seasonal license" described in the petition "for the sale of alcoholic beverages in the Town of Wilmington for the year 1941, and to exercise their power of revocation and cancellation with respect thereto if found to be in excess of the legal quota allowed said Town for the year 1941." See G. L. (Ter. Ed.) c. 138, Section 17, as appearing in St. 1933, c. 376, Section 2, as amended by St. 1937, c. 424, Section 3; G. L. (Ter. Ed.) c. 138, Section 64, as appearing in St. 1934, c. 385, Section 20; G. L. (Ter. Ed.) c. 138, Section 67, as appearing in St. 1938, c. 400. The Superior Court ordered a writ to issue substantially in the terms of the prayer, and the respondents excepted. The case was heard on the petition and an answer denying some of the allegations of the petition and admitting the others. None of the allegations of the answer was traversed, and no evidence was introduced. The case, therefore, is presented on the facts alleged in the petition and not denied by the answer. Lowry v. Commissioner of Agriculture, 302 Mass. 111 , 112. Lydia E. Pinkham Medicine Co. v. Gove, 305 Mass. 213 , 216. Compare Pettengell v. Alcoholic Beverages Control Commission, 295 Mass. 473 , 474. On the facts so presented there is no ground for issuing the writ. The answer denied the allegation in the petition that the so called seasonal license described therein was issued. Indeed, it does not appear from the facts before the court that any such licenses have been issued in the town. There is, therefore, on the facts presented no license with respect to which the respondents have any duty "to exercise their power of revocation and cancellation" or any duty "to examine into the matter of the alleged illegal issuance of the so-called seasonal license" described in the petition. Principles of law applicable to different facts need not be considered.
Exceptions overruled. This is one of six cases -- heard on a consolidated bill of exceptions -- in which like decisions are made. The sole question presented by the exceptions is whether on the evidence a motor truck -- which could have been found not to have been legally registered --
could have been found to have been operated on a public way within the meaning of G. L. (Ter. Ed.) c. 90, Section 9, as amended (see St. 1934, c. 361), at the time that an automobile ran into it. There was evidence that the motor truck when being operated on a public way ran out of gasoline, that the operator thereof and a passenger got out and attempted to push the motor truck to the side of the way for the purpose of parking it, and that while it was being so pushed an automobile ran into it. A finding was warranted that the motor truck at this time was being operated within the meaning of the statute. This conclusion is supported by the case of Di Cecca v. Bucci, 278 Mass. 15 , where an automobile was stopped at the side of the way and some of the occupants went to get gasoline, and by cases similar in principle. See Commonwealth v. Henry, 229 Mass. 19 , 22-23; Commonwealth v. Clarke, 254 Mass. 566 ; Cook v. Crowell, 273 Mass. 356 , 358-359; Jenkins v. North Shore Dye House, Inc. 277 Mass. 440 , 445; Blair v. Boston Elevated Railway, ante, 1, 3. See also Cochran v. M. & M. Transportation Co. 112 Fed. (2d) 241, 243-244. Under these decisions a motor vehicle is being operated though in the course of ordinary operation it has stopped and its engine is not running. Such a stopping of a motor vehicle with its engine not running is fairly to be regarded as incidental to its operation. And this principle controls though the motor vehicle has become incapable of motion under its own motive power by reason of lack of gasoline. In such circumstances the fact that the motor vehicle was being pushed to the side of the way, rather than being allowed to stand still thereon, does not preclude a finding that it was being operated. Such pushing of the motor vehicle may fairly be regarded as incidental to operation thereof and a continuation of such operation. A different result is not required by the case of Norcross v. B. L. Roberts Co. 239 Mass. 596 , 598, which went on the ground that the motor vehicle there in question was merely being transported on the public way. No such close relation to ordinary operation as could have been found in the present case was shown.
[Note 1] The companion cases were Jeannette A. Crofoot vs. Edward Rozewski, M. Lillian Crofoot vs. Tekla Rozewski, Same vs. Edward Rozewski, Joseph Wachta vs. Stanley H. Ciosek, and Edward Rojewski vs. Same.