Bradley v. Bd. of Zoning Adjustment of City of Boston

• Citation: 255 Mass. 160,150 N.E. 892
• Parties: BRADLEY et al. v. BOARD OF ZONING ADJUSTMENT OF CITY OF BOSTON.
• Decision Date: 02 March 1926
• Court: United States State Supreme Judicial Court of Massachusetts

255 Mass. 160

150 N.E. 892

BRADLEY et al.

v.BOARD OF ZONING ADJUSTMENT OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1926.

Case Reserved from Supreme Judicial Court, Suffolk County; H. K. Braley, Judge.

Original petition for a writ of certiorari by J. Payson Bradley and others against the Board of Zoning Adjustment of the City of Boston. Case reserved for the full court. Writ to issue.P. Nichols, of Boston, for petitioners.

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

RUGG, C. J.

This is a petition for a writ of certiorari brought under St. 1924, c. 488, § 20. That chapter is entitled:

‘An act regulating and restricting the use of buildings and premises, the height and bulk of buildings and the occupancy of lots in the city of Boston and for said purposes dividing the city into districts.’

The title fairly outlines the scope of the act. By its terms the city of Boston is divided into six districts, according to use, as delineated on a zoning map, with great detail of description as to the permissible uses and with further divisions regulative of height and bulk of buildings. By section 20 of that act the board of zoning adjustment is created, and clothed with power, on compliance with certain provisions, to change the boundaries of such districts to accomplish specified objects. When decision to make such change has been made by the board of zoning adjustment--

‘any person aggrieved * * * may within fifteen days after the entry of such decision, bring a petition * * * for a writ of certiorari setting forth that such decision is in whole or part not in accordance with the duties and powers of such board as above prescribed and specifying the particulars of such noncompliance. * * *’

The provisions of the General Laws governing certiorari ‘shall, except as herein provided, apply to said petition.’

[1][2][4] 1. The use of ‘certiorari’ is this context in the statute imports its usual meaning and function under the uniform and long-established practice in this commonwealth. Certiorari is an extraordinary writ. Its purpose is to enable a party, without other remedy for errors of law committed against his rights, to bring the true record of an inferior judicial or quasi judicial tribunal, properly extended so as to show the principles of its decision, before a superior court for examination as to material mistakes of law apparent on the face of such record. Only errors of law can be reviewed. Findings of fact are not open to revision. The full report of the evidence incorporated in the present return was unnecessary and an encumbrance of the record. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 207, 212, 217;Swan v. Justices of the Superior Court, 111 N. E. 386, 222 Mass. 542, 544;Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 144 N. E. 397, 249 Mass. 465, 468, and cases there collected.

There is nothing in the present statute which warrants any departure from the established practice. If it had been the intention of the General Court to provide an appeal to this court on the facts or for a review of the decision of the board of zoning adjustment on its merits, it would have been simple to use language declaratory of such purpose. The absence of any express provision to that end denotes that certiorari in the statute means the remedy commonly afforded by our laws and procedure under that name.

[5] 2. The constitutionality of the provisions of said chapter 488 are assailed in respect to the composition and appointment of the board of zoning and adjustment (hereinafter called the board) and in respect to its power to change the boundaries of districts established by the Legislature. It becomes necessary to state the salient provisions of the statute so far as material to these contentions.

The first two sentences of section 20 of said chapter 488, being a large portion of its first paragraph, are in these words:

‘There shall be a board of zoning adjustment to consist of twelve members as follows: The chairman of the city planning board ex officio, and eleven members appointed by the mayor in the following manner: One member from two candidates nominated by the Associated Industries of Massachusetts, one member from two candidates nominated by the Boston Central Labor Union, one member from two candidates nominated by the Boston Chamber of Commerce, one member from two candidates to be nominated by the Boston Real Estate Exchange, one member from two candidates to be nominated by the Massachusetts Real Estate Exchange, one member from two candidates, one to be nominated by the Boston Society of Architects and one by the Boston Society of Landscape Architects, one member from two candidates to be nominated by the Boston Society of Civil Engineers, one member from two candidates to be nominated by the Master Builders' Association of Boston, one member from two candidates to be nominated by the Team Owners' Association, one member from two candidates to be nominated by the United Improvement Association, and one member to be selected by the mayor. All appointive members shall be residents of or engaged in business in Boston.’

The attack on this part of the statute is based upon the contention that the freedom of appointment naturally appurtenantto the power to name a public officer is curtailed beyond constitutional bounds. The succinct statement of the principle, which, it is contended, strikes down these provisions of said section 20, is found in the opinion of Chief Justice Field in Brown v. Russell, 43 N. E. 1005, 1009, 166 Mass. 14, at 25,32 L. R. A. 253, 55 Am. St. Rep. 357, in these words:

‘In offices which are created by the Legislature, where the method of appointment is not prescribed by the Constitution, the Legislature, if no limitation is put upon its power by the Constitution, can take upon itself the responsibility of selecting the persons to be appointed, or can confer the power of appointment upon public officers or boards, or upon the inhabitants of cities, towns, or districts; but we think that it is inconsistent with the nature of our government, and particularly with articles 6 and 7 of our Declaration of Rights, that the appointing power should be compelled by legislation to appoint to public offices persons of a certain class in preference to all others, without the exercise on its part of any discretion, and without the favorable judgment of some legally constituted officer or board designated by law to inquire and determine whether the persons to be appointed are actually qualified to perform the duties which pertain to the offices.’

This statement, invoked by the petitioners, was made in the course of a discussion which reached the conclusion that a statute purporting to give to veterans absolute, particular and exclusive privileges distinct from those of the community in obtaining public office was in violation of the fundamental law. Its soundness is not open to question. But it is not applicable to the statute here assailed, in the light of the facts to which the Legislature manifestly was directing its attention.

[6][7][8] The many particular districts established by said chapter 488, based upon the use and height and bulk of buildings, are scattered widely over the territory of the city of Boston, and those of the same class are by no means contiguous. The adoption of any such scheme of improvement for one of the oldest cities in the country must recognize to a large extent existing customs as to business, ocean shipping, commerce, manufacture and residence. Changes in the boundaries of districts once established require the exercise of a high degree of practical wisdom. The members of any board charged with this important and delicate duty are public officers as distinguished from employees. Attorney General v. Drohan, 48 N. E. 279,169 Mass. 532, 535,61 Am. St. Rep. 301;Attorney General v. Tillinghast, 89 N. E. 1058, 203 Mass. 539, 543, to 545, 17 Ann. Cas. 449. A statute designed to secure men of eminent sagacity for the performance of these duties is entitled to every presumption in its favor. The names of the several societies, charged by the statute with nominating the individuals from whom the appointments must be made, indicate in general that they are composed of members particularly interested in special subjects having direct relation to various aspects of the public welfare likely to be affected by zoning districts in a great seaport, manufacturing and residence city. The record does not disclose the chartered or declared purposes of these several societies. In favor of the constitutionality of a legislative enactment, inferences may be drawn from their names. It may well be thought that the Associated Industries of Massachusetts have immediate concern for the maintenance and expansion under favoring conditions of all branches of manufacture and industry, the Boston Central Labor Union for sanitation, safety and suitableness of location of places where work is performed by considerable numbers of employees, the Boston Chamber of Commerce for mercantile, commercial and transportation facilities and improvements, the two named real estate exchanges for the rational extension and development of all uses of land and buildings in and around Boston, the Boston Society of Architects for the scientific study of building construction and of convenience, beauty and dignity of edifices for all kinds of business and residence, the Society of Landscape Architects for the appropriate and beautiful setting of structures of every description with reference to present and future surroundings, the Master Builders' Association for suitable material and structural strength of buildings of all kinds, the Team Owners' Association for facilities and freedom from congestion of street traffic, and the United Improvement Association for civic betterment in all its physical...