Bancroft v. Bldg. Comm'r of City of Boston

• Decision Date: 18 September 1926
• Citation: 153 N.E. 319,257 Mass. 82
• Parties: BANCROFT et al. v. BUILDING COMMISSIONER OF CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 82

153 N.E. 319

BANCROFT et al.

v.BUILDING COMMISSIONER OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 18, 1926.

Case Reserved from Supreme Judicial Court, Suffolk County.

Petition for a writ of mandamus by Jane W. W. Bancroft and others against the Building Commissioner of the City of Boston, to require defendant to refuse to grant a building permit. On reservation. Demurrers to petition overruled, motion to dismiss denied, and peremptory writ to issue.

A. D. Hill and R. S. Sughrue, both of Boston, for petitioners.

L. Schwartz, Asst. Corporation Counsel, of Boston, for respondent.

D. J. Lyne and J. W. Mahoney, both of Boston, for the Embassy, Inc., intervener.

CROSBY, J.

This is a petition for a writ of mandamus by residents of Boston. The case is before us on a reservation by a single Justice of this court upon the pleadings and an agreed statement of facts, with the following recital:

‘If the petition is maintainable as matter of law, I should not dismiss it in the exercise of any discretion which may be vested in me.’

The Embassy, Inc., owns a parcel of land on the northerly side of Beacon street, in Boston, and on or about December 9, 1925, made application to the building commissioner for a permit to erect an apartment house on the land, which has a depth of one hundred and fifty feet to Back street, a street, alley or open passageway running parallel with and north of Beacon street. The petitioners are severally the owners of lots situate on the northerly side of Beacon street, each with a single dwelling house thereon; and two other petitioners who have been allowed to intervene are owners of lots each with a dwelling house thereon adjacent to the lot on Beacon street owned by the Embassy, Inc. The building commissioner and his predecessor in office have respectively informed the petitioners that the permit will be granted as applied for unless its issuance is prevented ‘by legal order.’ It is the intention of the present building commissioner, the respondent Rourke, to grant such permit unless so prevented. The petitioners contend that the building proposed to be erected, as described in the agreed statement of facts, would be in violation of the building law of the city of Boston. St. 1907, c. 550, § 55. The petitioners pray that a writ of mandamus issue commanding the respondent building commissioner to refuse to grant the permit applied for.

On this record two main questions are presented: (1) Are the petitioners entitled to maintain this petition to prevent the erection of the building in violation of the building law of the city of Boston? and (2) Would the proposed building if erected be in violation of section 55 of the building law which requires a central yard space across the width of the lot?

The general rule is that to maintain a petition for mandamus the petitioner must show some private right or interest beyond the right and interest of the public. But when the question is one of public right and the purpose is to procure the performance of a public duty, and no other remedy is open, a petitioner need not show that he has any special interest in the result; it is sufficient that as a citizen he is interested in the due execution of the laws. Union Pacific Railroad v. Hall, 91 U. S. 343, 23 L. Ed. 428;Strong, Petitioner, 20 Pick. 484, 495. It was said by Chief Justice Gray in Attorney General v. Boston, 123 Mass. 460 at page 479:

‘There is a great weight of American authority in favor of the doctrine that any private person may move, without the intervention of the Attorney General, for a writ of mandamus to enforce a public duty not due to the government as such.’

In Cox v. Segee, 206 Mass. 380, 92 N. E. 620, it was held that two citizens and taxpayers of a town might maintain a petition for mandamus to compel the assessors of taxes of a town to comply with a valid by-law of the town, even though the selectmen had refused to act, and the Attorney General declined to interfere. In that case it was said (page 381, 92 N. E. 621):

‘But if in the performance of their official duties the respondents were subject to the by-law, the petitioners, as inhabitants and taxpayers of the town, may compel its enforcement by mandamus, even if upon their request the selectmen refused to act and the Attorney General after hearing the relators declined to intervene.’

This rule was applied in Brewster v. Sherman, 195 Mass. 222, 80 N. E. 821, 11 Ann. Cas. 417. In Kelley v. Board of Health of Peabody, 248 Mass. 165, 143 N. E. 39, it was held that the taxpayers of a city could not maintain a bill in equity to restrain the board of health and plumbing inspector from permitting a violation of a municipal ordinance or by-law. But it was there said (page 169, 143 N. E. 39):

‘The case presented is one where the owner of the building and the contractor are about to violate the ordinance, while the board of health and the inspector of plumbing stand by inactive, giving countenance to the intended unlawful act. In this attitude of the board of health and the inspector of plumbing, any citizen may prefer a complaint to the mayor, as the chief executive officer of the city; and upon the failure of such officer to act in the name of the city, may himself proceed by petition for a writ of mandamus, or for a mandamus by the information of the Attorney General.’

See O'Brien v. Turner, 255 Mass. 84, 150 N. E. 886. This is in accordance with the rule in England. The King v. Severn & Wye Railway, 2 B. & Ald. 646. The King v. Justices of Kent, 14 East, 395. The decisions above cited show that a writ of mandamus is the proper remedy in a case of this kind.

The cases relied on by the respondent are not in conflict with the result here reached. Pearsons v. Ranlett, 110 Mass. 118, was a petition for a writ of mandamus, and it was held that the writ should issue. In Jenks v. Williams, 115 Mass. 217,Hagerty v. McGovern, 187 Mass. 479, 73 N. E. 536, and O'Keefe v. Sheehan, 235 Mass. 390, 126 N. E. 822, the relief sought was by bill in equity. Rudnick v. Murphy, 213 Mass. 470, 100 N. E. 643, Ann. Cas. 1914A, 538, was a petition for certiorari. Warner v. Taunton, 253 Mass. 116, 148 N. E. 377, was a petition for a writ of mandamus. The alleged obstructions in the highway, if unlawful, constituted a public nuisance for which an adequate remedy was given by prosecution, and in equity by an information by the Attorney General or some other public officer representing the commonwealth. For these reasons that case is distinguishable from the facts in the case at bar. Mandamus will not lie when there is any other adequate remedy. Daly v. City of Medford, 241 Mass. 336, 339, 135 N. E. 307. Apart from other causes, the remedy invoked for relief in the cases last cited and relied on by the respondent distinguishes them from the case at bar. It is plain that the petitioners are not entitled to relief in equity (Kelley v. Board of Health of Peabody, supra, and cases therein cited), and that mandamus is the only remedy open to them. Jenks v. Williams, 115 Mass. 217; Attorney General v. Boston, supra; Brewster v. Sherman, supra; O'Brien v. Turner, supra.

The fact that the building commissioner has not acted upon the application is not a bar to the maintenance of the present proceeding.

‘* * * When the person or corporation against whom the writ is demanded has clearly manifested a determination to disobey the laws, the court is not obliged to wait until the evil is done before issuing the writ.’ Attorney General v. Boston, supra, at page 474; Larcom v. Olin, 160 Mass. 102, 110, 35 N. E. 113; Brewster v. Sherman, supra; Cunningham v. Cambridge, 222 Mass. 574, 580, 111 N. E. 409, Ann. Cas. 1917C, 1100.

It follows that the petition was not prematurely brought.

It is provided by the building law of the city of Boston (St. 1907, c. 550, § 129) that:

‘Any court having jurisdiction in equity or any justice thereof shall, upon the application of the city by its attorney, have jurisdiction in equity: * * * To compel compliance with the provisions of this act.’

No remedy is given the petitioners by this statute, the authority to act being vested exclusively in the attorney for the city to enforce the provisions of the law. The record shows that before filing this petition, the petitioners applied not only to the building commissioner, but to the corporation counsel of the city to take proper action to prevent a violation of the building laws, but each declined to act, and the commissioner stated that he intended to grant the permit as applied for. In these circumstances the petitioners...