City of Lowell v. Archambault
| Decision Date | 08 September 1905 |
| Citation | 189 Mass. 70,75 N.E. 65 |
| Parties | LOWELL v. ARCHAMBAULT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James Gilbert Hill, City Sol., for complainant.
F. W. & S.E. Qua, for defendant.
This is a bill in equity, brought under Rev. Laws, c. 102, § 71, to enjoin the defendant from occupying and using a stable, in violation of the provisions of section 69 of the same chapter. In the superior court the case was submitted on agreed facts, and after a decree had been entered in favor of the plaintiff, it comes before us on the defendant's appeal.
It appears that the defendant, who is engaged in the business of an undertaker, desiring to erect on his land a stable to be used in connection therewith, applied to the board of health for a license to permit him to occupy and use the building when completed for the stabling of eight horses. This petition was granted, and a license duly issued to him, permitting the exercise of this privilege. Upon receiving it, he at once had plans prepared, and began the erection of a stable on a site from which he had at a pecuniary loss removed another building. After the work had been begun, but before its completion, the board of health, acting on the petition of residents in the immediate vicinity, rescinded their former vote and canceled the license. Since the completion of the building the defendant has used it for the keeping of two horses, claiming this right under the license, which he contends never has been legally annulled. If the revocation was invalid, such use was not in violation of the statutory provision on which the plaintiff relies, and the bill cannot be maintained. The license granted under the police power of the commonwealth, as administered through the agency of the board of health, did not constitute a contract between him and the city, or confer upon him any vested right of property. Neither did its abrogation, if lawful, deprive him of any immunity or privilege conferred upon him by our Constitution. Calder v. Kurby, 5 Gray, 597; Newton v. Joyce, 166 Mass. 83, 44 N.E. 116, 55 Am St. Rep. 385; Young v. Blaisdell, 138 Mass. 344. The Statutes of 1895 (page 219, c. 213), now Rev. Laws, c. 102 §§ 69, 71, under the authority of which the board acted and the license was issued, contained no provisions for its recall when once granted. It evidently was the purpose of section 1 of the original act that the license itself should specify the extent of the right conferred, by setting out the conditions under which the building could be built and used for by section 2 the board may make regulations respecting the occupation and use of stables in existence at the date of its passage, while the last section provided a penalty for the violation of the act itself, or of any order or regulation made pursuant to its requirements. Whether a stable was in existence and its use was to be continued, or permission was to be given to erect a stable and then use it, the right in each instance was subject to such reasonable regulations as might be made by the board of health. It undoubtedly was presumed that the board would make proper inquiries before judicially determining whether a license should or should not be refused, and, if granted, to prescribe by its terms how far the privilege might be exercised. In any instance, if the granting of a license would be detrimental to the public health, or contrary to regulations already established, then it would not be issued. If the statute had given to the boards of health of cities a general authority similar to that conferred by Pub. St. 1882, c. 80, § 10, it might be that they lawfully could make the violation of their regulations a sufficient ground for revoking the privilege, and could issue it upon such a condition. Young v. Blaisdell, ubi supra; Grand Rapids v. Braudy, 105 Mich. 670, 677, 678, 64 N.W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472. At least it could be said that the licensee then would take it subject to this reservation, and, having agreed to its terms, no injustice would be done by a subsequent cancellation. Generally, under statutes regulating the conduct of certain kinds of employment or of business which require the protection of a license before they can be lawfully prosecuted, the penalty of forfeiture is dealt with either by conferring express authority to revoke for violations upon the licensing board or some other tribunal, or else a general power is delegated, under which such a clause may be inserted in the license itself. Rev. Laws, c. 100, §§ 15, 47, 89; chapter 102, §§ 9, 28, 29, 33, 58, 72; Grand Rapids v. Braudy, ubi supra. Upon application for permission to erect a stable, which, in the absence of a restricting statute, would be a legitimate improvement in the enjoyment of his property, the applicant is entitled to know the full measure of immunity that can be granted to him before making the expenditure of money required to carry out his purpose. A resort to the general laws relating to the subject, or to ordinances or regulations made pursuant to them, should furnish him with the required information. When this has been obtained, he has a...
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