Boucher v. Longley

• Decision Date: 14 September 1916
• Parties: BOUCHER v. LONGLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 18

113 N.E. 575

BOUCHER

v.LONGLEY et al.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 14, 1916.

Report from Supreme Judicial Court, Essex County.

Petition for writ of mandamus by Ovide Boucher against Edmund W. Longley and others, as the Salem Rebuilding Commission. Case reported on pleadings and agreed statement of facts for the determination of the full court. Petition dismissed.

W. A. Pew, of Salem, for plaintiff.

W. D. Chapple, of Salem, for respondents.

RUGG, C. J.

This is a petition for a writ of mandamus. The case has been reserved ‘on the pleadings and agreed statement of facts' ‘for the determination of the full court.’ It was said respecting similar phraseology in a reservation in Scanlon v. Carey, 207 Mass. 285, 286, 93 N. E. 697, 698:

‘The reservation in this case is informal, but the parties have treated it and we treat it as intended to report to this court questions of law that arose at the hearing, which was all that properly could be reserved or reported under the statute. R. L. c. 173, § 105.’

It has been held that ‘questions of discretion are, in their essence, questions of fact,’ and cannot be brought before this court for determination in a proceeding on the law side of the court. Com. v. National Contracting Co., 201 Mass. 248, 249, 87 N. E. 590, 591;Electric Welding Co. v. Prince, 200 Mass. 386, 86 N. E. 947,128 Am. St. Rep. 434, and cases cited; Wyeth v. Board of Health, 200 Mass. 474, 481, 86 N. E. 925,23 L. R. A. (N. S.) 147, 128 Am. St. Rep. 439.

The defendants are the Salem Rebuilding Commission, duly appointed by the Governor of the commonwealth under St. 1914, c. 777. It is obvious from the several sections of that act that this commission is clothed by the Legislature with unusual powers in order to deal with the extraordinary conditions following the Salem conflagration of June, 1914. The commission is authorized to make extensive public improvements by discontinuing, laying out, widening and altering public ways within and without the burnt district; to establish building lines and otherwise to forward reconstruction according to adequate city planning, upon the land laid waste by the fire. Authority is conferred to take land by eminent domain, to execute contracts binding upon the municipality, to employ servants and agents, to require the services of city officers and employés and to requisition imperatively the city council for whatever money may be necessary to carry out the purposes of the act. Its jurisdiction is comprehensive and its powers are ample to accomplish the ends of its creation. In this connection it is provided by section 3 that:

‘In those parts of the city in which buildings were destroyed by the said fire, said commission and its agents shall have sole authority to grant permits for the erection of buildings, and may make regulations as to the location and size of such buildings and the materials of which they shall be constructed, and as to what proportion of the lots of land upon which they stand shall be covered thereby.’

The plaintiff having been licensed by the board of health of Salem to erect a brick stable, two stories in height, without windows on the sides and with no light on the lower floor except at the ends of the building, designed to cover the entire width of a lot of land and extending back one hundred and forty feet from the street line to an open space bordering upon a river to which there is no access from any highway, made application to the defendants on March 27, 1916, for a permit to erect the building. On the ninth day thereafter, April 5, 1916, no final action having been taken by the defendants, he filed the present petition. It would be difficult to escape the conclusion that failure to act finally on the plaintiff's...