City of Lawrence v. MacDonald
| Decision Date | 14 September 1945 |
| Citation | 62 N.E.2d 850,318 Mass. 520 |
| Parties | CITY OF LAWRENCE v. MacDONALD et al., Com'rs of Public Works. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition by the City of Lawrence against Herman A. MacDonald and others, Commissioners of Public Works, and others, to quash proceedings of the Department of Public Works by which the Colonial Beacon Oil Company was licensed to lay a pipe line in the Merrimack river a few miles above the intake of the water supply system of the city. From a final judgment adverse to the city and from certain interlocutory orders, the city appeals.
Interlocutory appeals dismissed and final judgment reversed, and final judgment to be entered in accordance with opinion.
Before FIELD, C. J., and QUA, DOLAN, RONAN, WILKINS, and SPALDING, Jj.
J. P. Kane, City Sol., of Lawrence, for petitioner.
R. Clapp, Asst. Atty. Gen., for respondent.
On December 15, 1944, the department of public works by a vote of two out of the three commissioners purported to grant to Colonial Beacon Oil Company a license to lay and maintain a four inch pipe line across the bed of Merrimack River between the towns of Andover and Dracut at a distance stated at the hearing before the commissioners to be about four miles above the intake of the water supply system of the city of Lawrence. The department assumed to act under the authority of G.L.(Ter.Ed.) c. 91, § 12, which authorizes it to license and to prescribe the terms of construction of structures (pipe lines, § 1) in certain rivers, including the nontidal part of Merrimack River, and which declares unlicensed structures to be public nuisances. The city brought this petition in the Superior Court to quash the proceedings of the department which resulted in the granting of the license, and now appeals from a final judgment adverse to it in that court and from certain interlocutory orders made in the course of the proceedings. G.L.(Ter.Ed.) c. 213, § 1D, as inserted by St.1943, c. 374, § 4.
1. The Attorney General in his brief in behalf of the respondents assumes that inasmuch as the department gave notice of the hearing before it to all the world, and as the city appeared and was the principal objector before the department and was so situated that it and its inhabitants might conceivably suffer damage from a pipe line for oil or its products in the river above it, the city had such interest in the matter as would entitle it to bring this petition. By St. 1872, c. 79, the city of Lawrence was authorized to take water from Merrimack River for the use of the city and its inhabitants. In view of the importance to any municipality of its public water supply and of the unfortunate consequences that might result if that supply should become polluted with oil or oil products containing lead through breaks or leaks in a pipe line, and in view of the responsibility of the city to its water users for the purity of its water, Horton v. North Attleborough, 302 Mass. 137, 19 N.E.2d 15, we think that the city has an interest in the construction of the pipe line different in kind from that of members of the public in general, and that the city is therefore in a position to bring, this petition. See Powers v. City Council of Springfield, 116 Mass. 84, 87;Natick Gas Light Co. v. Natick, 175 Mass. 246, 252, 56 N.E. 292;Putnam v. Boston & P. R. Corporation, 182 Mass. 351, 354, 65 N.E. 790;Munn v. Boston, 183 Mass. 421, 67 N.E 312;Hyde v. Fall River, 189 Mass. 439, 440, 75 N.E. 953, 2 L.R.A.,N.S., 269; New York, N. H. & H. R. Co. v. Deister, 253 Mass. 178, 148 N.E. 590;American Can Co. v. Milk Control Board, 313 Mass. 156, 160, 161, 46 N.E.2d 542, and cases cited. Compare Davis v. County Com'rs of Hampshire, 153 Mass. 218, 26 N.E. 848,11 L.R.A. 750;Warner v. City of Taunton, 253 Mass. 116, 118, 148 N.E. 377;Dube v. Mayor of City of Fall River, 308 Mass. 12, 14, 15, 30 N.E.2d 817. The interest of the city is so different from that of a mere private landowner that it is not necessary to decide whether every riparian proprietor below the proposed pipe line would also have standing as a petitioner.
2. We are not impressed by the city's argument that the department of public works could not grant the license because of the control over sources of water supply conferred upon the department of public health by the provisions of G.L.(Ter.Ed.) c. 111, particularly § 5 and §§ 159 to 174A. We find nothing in c. 111 which affects the power to grant licenses expressly conferred upon the department of public works by c. 91, § 12, or which conflicts with the full exercise of that power. See Stone v. Heath, 179 Mass. 385, 388, 60 N.E. 975.
3. But the city presses another point of more difficulty. It appears from admissions not disputed and evidently accepted by the trial judge as true that one of the respondents, former Associate Commissioner Whipple, had, on November 18, 1944, written to the Governor requesting him to accept his resignation as associate commissioner of public works ‘to take effect not later than December 15’ (the date of the granting of the license), and that on November 27 the Governor had accepted the resignation ‘as of December 15.’ We agree with the concession made by the Attorney General at the argument that facts relating to the resignation of one of the commissioners would not commonly form part of the record of proceedings of the department relative to the granting of a license, and that such facts, not appearing in the return, may be shown outside of it. See Marcus v. Board of Street Commissioners of Boston, 252 Mass. 331, 147 N.E. 866;Morrison v. Selectmen of Weymouth, 279 Mass. 486, 490, 181 N.E. 786;Morrissey v. State Ballot Law Commission, 312 Mass. 121, 124, 125, 43 N.E.2d 385. It therefore appears in this case that Associate Commissioner Whipple, whose vote and signature were necessary to the validity of the license (G.L.[Ter.Ed.] c. 91, §§ 12, 18), ceased to hold office on the very day on which he voted for and signed the license.
The question on this part of the case is not one of measuring a period of time expressed in days. That matter has been the subject of many decisions. The question here concerns the relation to each other of two inconsistent acts or events, each taking place upon the same day, the time of neither of which is fixed any more definitely than by reference to that day. It is a further peculiarity of this case that the time of the resignation is incapable of being more definitely fixed by any further evidence of facts but depends entirely upon the legal consequences of the written resignation and acceptance already described. It is a matter of the legal construction of the documents and not a question of fact in the ordinary sense. Both sides invoke the common law rule that the law takes no account of fractions of a day. The petitioner contends that Whipple's resignation was effective through the whole of December 15. The respondents contend that he remained in office through the whole of that day.
It is plain that Whipple's resignation by its terms and by the terms of its acceptance could not take effect at any moment of time which was later than the fifteenth. If it took effect earlier than the fifteenth, the license was invalid. But if, as we assume, it took effect on the fifteenth, it must have taken effect at some moment lying within the confines of that day, and the rule against splitting the day demands that no one moment of that day any more than any other moment be singled out as the moment when it took effect. The last moment within the day cannot be chosen, since that would leave the resignation, which by hypothesis took effect on that day, ineffective during all but the last moment of the very day on which it took effect, thus splitting the day. The practical result, as applied to a case like the present one, seems to be that ‘a thing done at any time in a day is taken the same as though it had been done in the first minute of the day.’ Mathewson v. Ham, 21 R.I. 203, 204, 42 A. 871;In re Lawson, 7 Boyce, Del., 338, 342, 106 A. 288;Wallace v. McDaniel, 59 Or. 378, 386, 117 P. 314, L.R.A.1916C, 744. See Miniard v. Lewis, 206 Ky. 125, 126, 266 S.W. 1055. This accords with the common law rule that an infant becomes of age ‘at the earliest minute’ of the day preceding the twenty-first anniversary of his birth. Bardwell v. Purrington, 107 Mass. 419, 425. Williston on Contracts (Rev.ed.) § 224. Another way of putting the matter in the case before us would be to say that at whatever moment on December fifteenth the license is deemed to have issued, Whipple's resignation, since the day is indivisible, must be deemed in effect at that moment. The view we take is not inconsistent with the decision in Kennedy v. Palmer, 6 Gray 316, since in that case the statute was not to take effect upon some designated future day, with no hour fixed, and so leaving the precise time to be ascertained by the application of a rule of law, but was to take effect immediately upon being signed by the Governor, a moment capable of ascertainment through proof.
The only exactly similar case which we have seen, Loughran v. Mayor & Aldermen of Jersey City, 86 N.J.L. 442, 92 A. 55, holds that a resignation to take effect May 4, became effective at the stroke of midnight of May 3.
4. In the discussion of the case in this court the suggestion has been made that Whipple might have been acting as an officer de facto during the day of December 15 even after his resignation took effect; that if he was an officer de facto the license was valid; and that the petitioner has not shown that he was not an officer de facto.
No such contention as this was made by any party at the argument or in the briefs. There is nothing whatever in the record before us to show that Whipple continued to act as a commissioner during the day of December 15,...
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