Attorney General v. Inhabitants of Town of Dover

• Decision Date: 03 July 1951
• Citation: 327 Mass. 601,100 N.E.2d 1
• Parties: ATTORNEY GENERAL v. INHABITANTS OF TOWN OF DOVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

100 N.E.2d 1

327 Mass. 601

ATTORNEY GENERAL v. INHABITANTS OF TOWN OF DOVER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1951.

Decided July 3, 1951.

H. W. Radovsky, Asst. Atty. Gen. (L. E. Ryan and D. H. Stuart, Asst. Attys. Gen., with him), for the Attorney General.

C. C. Cabot, Boston (J. N. Worcester and J. P. Weitzel, Boston, with him), for the defendant.

J. D. Fitzgerald, Washington, D. C., E. J. Duggan, Boston, L. Pfeffer, New York City, G. A. Berlin, Boston, and P. Baum, New York City, by leave of court, submitted briefs as amici curiae.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and COUNIHAN, JJ.

QUA, Chief Justice.

This is an information in equity originally brought in the Superior Court by the Attorney General under G.L. (Ter.Ed.) c. 40, § 30B, inserted by St.1938, c. 133, § 2, as amended by St.1950, c. 325, § 2, against the town of Dover and its selectmen to have declared invalid a by-law of the town purporting to exclude from districts zoned for 'residence' any use of premises for sectarian educational purposes. The trial judge made findings of fact and rulings of law and thereupon reserved and reported the case upon the pleadings, the evidence, and the findings and rulings, 'such decrees to be entered as justice and equity may require.'

In the view we take of the case there is no dispute over the decisive facts, and there is no necessity to describe, even in outline, a controversy between a religious organization and the town or its selectmen, which furnished the occasion for the bringing of this proceeding.

Section 25 of c. 40 of the General Laws as appearing in St.1933, c. 269, § 1, is the section which confers general powers upon municipalities to enact zoning ordinances and by-laws. By St.1950, c. 325, § 1, there was added to the first paragraph of the section conferring these general powers a limitation or qualification in these words, 'No by-law or ordinance which prohibits or limits the use of land for any church or other religious purpose or which prohibits or limits the use of land for any religious sectarian or denominational educational purpose shall be valid.'

Section 30B of said c. 40, inserted by St.1938, c. 133, § 2, is the section which gives the Superior Court jurisdiction at the instance of proper public officers, Tranfaglia v. Building Commissioner of Winchester, 306 Mass. 495, 498-499, 28 N.E.2d 537, to enforce zoning ordinances and by-laws. The same act of 1950 which limited the zoning power of municipalities in respect to religious purposes and religious, sectarian, or denominational educational purposes, also contains a section 2 amending said section 30B by adding thereto the following, 'The attorney general, in his own name as such officer, shall bring an information in equity for a declaratory decree as to the validity of any municipal ordinance or by-law enacted under sections twenty-five to thirty A, inclusive.' This is the provision under which the present information was filed.

In 1933 the town of Dover adopted a zoning by-law prohibiting by section II the erection, alteration, or use of any building or premises in a residence district for any purpose except certain enumerated purposes which, in addition to '1. Detached one-family dwelling,' included '3. Church,' and '4. Educational use.' On March 4, 1946, this by-law was amended in subdivision 4 last above quoted, so that the subdivision read, '4. Educational use; if nonsectarian and if not organized or operated for private profit.' The amendment was approved by the then Attorney General. One effect of it, if valid, would be to prohibit any use of land or buildings in a residential district for sectarian educational purposes. The present Attorney General contends that if the amended subdivision was ever valid, it became invalid immediately upon the taking effect of the statute of 1950.

In our opinion this contention is correct.

We think it plain that the statute and subdivision 4 of the by-law as amended cannot stand together. The statute says that 'No by-law or ordinance which prohibits or limits the use of land for any * * * religious, sectarian or denominational educational purpose shall be valid.' The amended by-law attempts to admit to residence districts educational uses only 'if non-sectarian.' The conflict is apparent. An argument has been addressed to us as to possible different meanings of the word 'sectarian' in connection with 'educational purpose,' but it seems to us unnecessary to elaborate upon this. The word 'sectarian' as used in the statute is broad enough to embrace may meaning which can properly be assigned to the same word following the prefix 'non-' in the by-law. For purposes of this case it is immaterial whether an educational enterprise becomes 'sectarian' because it teaches the tenets of a particular sect, because it is controlled by a particular sect, because it admits only students belonging to a particular sect, or for whatever other reason.

We cannot accept the argument of the defendants that the act of 1950 does not apply to ordinances or by-laws in existence when it was enacted but applies only prospectively to such as may be passed after the statute was enacted. There can be no doubt that the statute was intended as an expression of a general policy to take away from all municipalities all power to limit the use of land for church or other religious purposes or for religious, sectarian, or denominational educational purposes. In a case like this there could have been no intent to leave ordinances and by-laws of the forbidden type in force in municipalities which had already passed such ordinances or by-laws, while prohibiting other municipalities from passing them. 'The power of the General Court over the subject of zoning is supreme. Article 60 of the Amendments of the Constitution. When it has spoken as to any branch of that subject, conflicting by-laws or ordinances established by local authority must give way.' Bennett v. Board of Appeal of Cambridge, 268 Mass. 419, 422, 167 N.E. 659, 660.

The defendants' principal contention seems to be that the information cannot be maintained because there is no justiciable question due to the absence of a 'controversy' which can be settled by judicial decision. It is contended that such a 'controversy' is necessary, first because the general statute relating to declaratory judgments, G.L. (Ter.Ed.) c. 231A, § 1, inserted by St.1945, c. 582, § 1, requires one, and second because without such controversy the statute of 1950 would impose a nonjudicial function upon the court in violation of the doctrine of separation of powers. Declaration of Rights, art. 30.

The first reason need not detain us long. The act of 1950 does not mention c. 231A, and we seriously doubt whether there was any intent to import into that act any of the provisions of the general law of declaratory judgments. But even if we assume that in general these statutes are to be read together, the act of 1950 means what it says and so far as statutory construction goes must be deemed to have been intended to create a right in the Attorney General to proceed with no more controversy than that brought about by bringing the information.

The second reason raises the real question. We are of opinion, however, that the statute does not impose upon the courts a nonjudicial function. It is a commonplace that the legislative department of government may by the enactment of new laws create new rights, powers, and duties not previously existing and new procedures for their enforcement, with the result that new causes of action arise of which the appropriate courts have jurisdiction. That is what has happened in this instance. By the second section of St.1950, c. 325, the Legislature has in effect said that whenever it appears to the Attorney General that a municipal ordinance or by-law relative to zoning is probably invalid he shall have a cause of action for the determination of its validity. That is a kind of issue with which the courts are constantly dealing, and with which they are particularly adapted to deal. It involves only the usual interpretation of the law and its application to the facts. See Driscoll v. Mayor of Somerville, 213 Mass. 493, 100 N.E. 640. It does not involve questions of public policy. The decision of such an issue is neither legislative nor an executive act. We assume that the Legislature could itself reach down into the affairs of any town and by statute abolish a particular by-law, but instead of taking that...