Bldg. Inspector of Lowell v. Stoklosa

• Decision Date: 18 October 1924
• Citation: 250 Mass. 52,145 N.E. 262
• Parties: BUILDING INSPECTOR OF LOWELL v. STOKLOSA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 52

145 N.E. 262

BUILDING INSPECTOR OF LOWELL

v.STOKLOSA.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 18, 1924.

Report from Superior Court, Middlesex County; F. J. Hammond, Judge.

Petition in equity by Francis A. Connor, Inspector of Buildings of the City of Lowell, to restrain Joseph Stoklosa from erecting building for business purposes in violation of an ordinance enacted in pursuance of provisions of chapter 40, section 25, of the General Laws. On report. Restraining order granted.Patrick J. Reynolds, of Lowell, for plaintiff.

Wm. D. Regan, of Lowell, for defendant.

RUGG, C. J.

This is a suit in equity by the inspector of buildings of Lowell to restrain the defendant from erecting a certain building for business purposes in that city in violation of an ordinance enacted pursuant to G. L. c. 40, § 25. That section authorizes any city or town by ordinance or by-law to divide its territory into districts or zones, to restrict the use of buildings for trade and industry, for tenement houses and for dwelling houses to designated areas and to require such buildings to conform to establish regulations as to construction and use. This authority and the limitations and regulations for its exercise are set out with some particularity in G. L. c. 40, §§ 25-30, both inclusive.

The constitutionality of the statute is assailed by the defendant. Manifestly the statute was intended to be enacted pursuant to the authority conferred by article 60 of Amendments to the Constitution, which is in these words:

‘The general court shall have power to limit buildings according to their use or construction to specified districts of cities and towns.’

The justices were requested to give their opinion to the honorable House of Representatives as to the constitutionality of the sections of the statute here in question while they were pending and before their enactment. The opinion was expressed that the proposed act, now embodied in substance in the sections here attacked, would not violate either the Constitution of this commonwealth or that of the United States, and that article 60 of the Amendments of the Constitution, in that it authorized the enactment of the proposed statute, was in no respect in contravention of any provision of the Constitution of the United States. Opinion of Justices, 234 Mass. 597, 127 N. E. 525.

Such opinions are rendered in accordance with the mandate of the Constitution (chapter 3, art. 2), and express views resting upon judicial investigation and consideration. They are advisory in nature, are given without the benefit of argument, are liable to error and must be regarded not as conclusive and binding but subject to reexamination and revision. When called upon to decide the same questions coming before them as a court, the justices guard themselves most sedulously against any influences flowing from their previous consideration. Green v. Commonwealth, 12 Allen, 155, 164;Young v. Duncan, 218 Mass. 346, 351, 106 N. E. 1;Perkins v. Westwood, 226 Mass. 268, 272, 115 N. E. 411;Loring v. Young, 239 Mass. 349, 361, 132 N. E. 65. There has been given to the questions now presented the most careful, thorough and painstaking investigation and reflection which the sense of judicial obligation can impose.

The conclusion now reached in the case at bar is that article 60 of the Amendments, so far as it authorizes the enactment of the sections of the statute here attacked, is not violative of any provision of the Constitution of the United States and that the sections of the statute are not obnoxious to any provision of the Constitution of this commonwealth or of that of the United States. The reasons which now seem decisive and the supporting authorities are stated at large in the advisory opinion. It is hardly worth while to expand the bulk of our reports by covering the same ground again. Without further present discussion, summarization, amplification, restatement or paraphrase, that opinion is adopted as the judgment of the court in the case at bar. It covers every constitutional phase which has been argued or which has occurred to us.

That conclusion is supported by numerous cases most of which have been decided since that opinion was rendered. Lincoln Trust Co. v. Williams, 229 N. Y. 313, 128 N. E. 209;Ware v. Wichita, 113 Kan. 153, 214 Pac. 99;Des Moines v. Manhattan Oil Co., 193 Iowa, 1096, 184 N. W. 823,188 N. W. 921,23 A. L. R. 1322;State v. Harper, 182 Wis. 148, 196 N. W. 451;State v. New Orleans, 154 La. 271, 97 South. 440;Salt Lake City v. Western Foundry & Stove Repair Works, 55 Utah, 447, 187 Pac. 829;State v. Houghton, 142 Minn. 28, 170 N. W. 853;State v. Houghton, 144 Minn. 1, 174 N. W. 885,176 N. W. 159, 8 A. L. R. 585; Ex parte Quong Wo, 161 Cal. 220, 118 Pac. 714.There are decisions to the contrary. Spann v. Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387;State v. McKelvey, 301 Mo. 1, 256 S. W. 474;Handy v. South Orange, 99 N. J. Law, --, 118 Atl. 838;Vernon v. Westfield (N. J. Sup.) 124 Atl. 248. Compare Cliffside Park v. Cliffside, 96 N. J. Law, 278, 114 Atl. 797;Ambler Realty Co. v. Euclid (D. C.) 297 Fed. 307. Other decisions having a contrary appearance may rest upon other grounds. Byrne v. Maryland Realty Co., 129 Md. 202, 98 Atl. 547, L. R. A. 1917A, 1216;Clements v. McCabe, 210 Mich. 207, 177 N. W. 722;State v. Edgecomb, 108 Neb. 859, 189 N. W. 617, 27 A. L. R. 437. None of them were decided in view of constitutional provisions like those of article 60 of the Amendments. So far as they are at variance with the views here expressed and set forth at length in Opinion of Justices, 234 Mass. 597, 127 N. E. 525, we are not inclined to follow them.

It is urged that the ordinance transcends the authority conferred by the statute and hence is invalid. This contention requires some analysis of the ordinance. Its first section defines a building district as including ‘all lands locating or fronting upon each section of each accepted street between the boundary lines of each two adjacent intercepting streets or between the end of said street and the first adjacent intersecting street.’ No argument against the validity of this section has been addressed to us. It seems sufficiently definite to identify land with reference to streets.

The second section creates as a business district any building district in which ‘not less than one-half the ground floor frontage of both the district and the frontage on the other side of the street immediately opposite said district are at the time this ordinance goes into effect devoted to business or industry other than farming, gardening, or the conduct of a boarding or lodging house, and a building district which is manifestly intended to be devoted to business or industry.’ The third section provides that all other building districts not described in section 2 shall be known as residence districts.

A division into business and residence districts on the basis thus provided is not unreasonable. In substance it was upheld in Welch v. Swasey, 193 Mass. 364, 79 N. E. 745,23 L. R. A. (N. S.) 1160, 118 Am. St. Rep. 523, affirmed in 214 U. S. 91, 29 Sup. Ct. 567, 53 L. Ed. 923;Ayer v. Commissioners on Height of Buildings, 242 Mass. 30, 32, 136 N. E. 338. There is nothing in the agreed statement of facts which indicates that the ordinance operates oppressively or inequitably. Every such division may injure somebody; but, if it appears to have been made in the public interest and to be reasonable in its general features, and there is nothing outside the ordinance to indicate that its purpose was to persecute or abuse, it...