C&H Co. v. Bldg. Com'r of City of Medford
| Citation | 21 N.E.2d 983,303 Mass. 499 |
| Parties | C & H CO. v. BUILDING COM'R of CITY OF MEDFORD. |
| Decision Date | 07 July 1939 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Report from Supreme Judicial Court, Middlesex County.
Petition for a writ of mandamus by the C & H Company against the Building Commissioner of the City of Medford and others to require the Board of Aldermen of the City of Medford to approve the petitioner's application for a permit to erect a building to be used as a retail market to serve the motoring public, wherein the single justice reported the case without decision.
Petition dismissed.
S. R. Wrightington, of Boston, for petitioner.
G. E. Constantino, of Boston, for respondents.
This is a petition by a landowner for a writ of mandamus to require the respondent board of aldermen of Medford to approve its application for a permit to build on its land a building to be used as a retail market to serve the motoring public, and not to change the zoning classification of the land from a heavy industrial area to a general residence area in which building for business purposes would be forbidden; and to require the respondent building commissioner to grant a permit so to build.
No contention was or is made by the respondents that the proposed building would violate any existing law, ordinance or regulation. The board of aldermen, to which the application was referred by the building commissioner, declined approve it and denied it. The building commissioner exercised no independent judgment, but ‘in accordance with this decision’ of the board of aldermen informed the petitioner that its application for a permit to build ‘is hereby refused.’
The single justice found that the facts were as stated in the report of an auditor, and reported the case without decision. The writer of this opinion would be willing to decide the merits fo the controversy upon the facts reported, but a majority of the court think that the general rule ought to be applied that mandamus cannot be invoked while another remedy exists. Bellevue Hotel Co. v. Building Commissioner of Boston, Mass., 12 N.E.2d 94;Godfrey v. Building Commissioner of Boston, 263 Mass. 589, 593, 161 N.E. 819;Bancroft v. Building Commissioner of Boston, 257 Mass. 82, 86, 153 N.E. 319;McLaughlin v. Mayor of Cambridge, 253 Mass. 193, 199, 148 N.E. 458.
The record before us does not show the authority under which the city enacted the building ordinance in question, but we suppose it was G.L....
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