Cawley v. Northern Waste Co.

• Decision Date: 11 October 1921
• Parties: CAWLEY v. NORTHERN WASTE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 540

132 N.E. 365

CAWLEY

v.NORTHERN WASTE CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 11, 1921.

Exceptions from Superior Court, Middlesex County; Frederick W. Fosdick, Judge.

Action by Edward Cawley against the Northern Waste Company. Verdict directed for defendant, and plaintiff brings exceptions. Exceptions sustained.

William D. Regan, of Lowell, for plaintiff.

Qua, Howard & Rogers, Albert S. Howard, and Melvin G. Rogers, all of Lowell, for defendant.

RUGG, C. J.

This is ‘an action of tort or contract’ brought by the owner and lessor of a building against the lessee to recover damages arising from a fire in the demised premises during the term. The lease contained provisions authorizing the defendant as lessee to install motors and necessary wires for carrying the electric current for use in the building, the same to be and remain the property of the lessee. The defendant convenanted ‘not to make or suffer any waste of said premises.’

The plaintiff offered in evidence an ordinance of the city of Lowell providing for an inspector of wires and purporting to regulate the inspection of wires used for electricity and other purposes. The offer was excluded. The vital parts of that ordinance are sections 9, 10, 11, and 14. They are printed in the margin.¹ It was provided by St. 1890, c. 404, § 3, in force on July 26, 1899, when the ordinance in question was approved by the mayor (see R. L. c. 122, § 18; G. L. c. 166, §§ 27 and 32), that--

‘Every city shall, by ordinance, designate or

This ordinance is not intended to govern or call for the inspection of electric bell systems, private or public telephones inside of public or private buildings, or the interior apparatus or boxes of the fire alarm or police system of the city.Section 10. No person or corporation shall change the position or make additions to any wiring system, or install any new work or electrical apparatus without first notifying the inspector and he given full opportunity to inspect the same before such work is completed; and when any electric wires designed to carry an electric light or power current are to be concealed, the inspector must be notified before work is commenced, and he shall give his permission and approval for all such work and connections immediately, unless in his judgment such apparatus or wiring endangers life or property or is not in accordance with the laws and ordinances, or in conformity with the established insurance rules.Section 11. The inspector shall require that the established rules and regulations of the National Board of Fire Underwriters shall be complied with, both for outside and interior construction.Section 14. Whoever violates or fails to comply with any of the provisions of this ordinance after being duly notified in writing by the inspector, shall forfeit and pay for each offense not less than ten nor more than twenty dollars.

‘Every city shall, by ordinance, designate or provide for the appointment of an officer who shall supervise * * * every wire within a building when such wire is designed to carry an electric light or power current; shall notify the person or corporation owning or operating any such wire whenever its attachments, insulation, supports or appliances are unsuitable or unsafe. * * *’

This statute does not authorize the enactment of an ordinance of the tenor of the three sections here assailed. By their terms no owner can connect a current of electricity with any system of wiring for light or power without a written permit from the inspector of wires. That officer is in effect forbidden to issue such a permit unless ‘the established rules and regulations of the National Board of Fire Underwriters' shall have been complied with. There is nothing in that statute or in Pub. Stats. c. 27, § 15 (see R. L. c. 25, §§ 23, 24, G. L. c. 40, §§ 21 to 33), which empowers a city council to adopt by mere reference the rules and regulations of another and foreign body as the basis for determining the suitableness or safety of the insulation, attachments, supports or appliances for wiring designed to carry electric currents. Commonwealth v. Staples, 191 Mass. 384, 77 N. E. 712;Brown v. Newburyport, 209 Mass. 259, 266, 95 N. E. 504, Ann. Cas. 1912B, 495. The case at bar upon this point is within the authority of well established principles which have been elaborated in comparatively recent decisions and need not be repeated. Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245,24 L. R. A. (N. S.) 1168;Kilgour v. Gratto, 224 Mass. 78, 112 N. E. 489.

An ordinance which goes beyond the authority conferred by the enabling statute is invalid. Commonwealth v. Hayden, 211 Mass. 296, 97 N. E. 783;Goldstein v. Conner, 212 Mass. 57, 98 N. E. 701.

It was assumed without discussion as a partial basis for decision in Brunelle v. Lowell Electric Light Corporation, 194 Mass. 407, 80 N. E. 466, that the ordinance here attacked was valid. No question there was raised in argument or otherwise as to the validity of the ordinance. The point was passed over in silence. Under such circumstances the decision does not stand as authority for any proposition not considered. No the point here presented for decision, the the point here presented for decision, the court is not bound by what there was said concerning the binding nature of the ordinance. United States v. More, 3 Cranch, 159, 172, 2 L. Ed. 397;Louisville Trust Co. v. Knott, 191 U. S. 225, 24 Sup. Ct. 119, 48 L. Ed. 159, and cases there collected. Swan v. Justices of Superior Court, 222 Mass....