Foss v. Wexler

• Decision Date: 01 July 1922
• Parties: FOSS v. WEXLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 277

136 N.E. 243

FOSS

v.WEXLER.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Appeal from Superior Court, Suffolk County; George A. Sanderson, Judge.

Suit by Clarence R. Foss, trustee, against Isidor Wexler, to restrain the use of a building as a garage and the storing of gasoline therein. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Frederic H. Chase and Raymond P. Delano, both of Boston, for appellant.

Lee M. Friedman, Jean Sisson, and Friedman & Atherton, all of Boston, for appellee.

DE COURCY, J.

The defendant holds title to a parcel of land at the corner of Columbia road and Quincy street, Dorchester, on which is a garage; the entrance and exit being on Columbia road. The plaintiff is the legal owner of two dwelling houses on the opposite side of Quincy street. He brought this bill in equity to restrain the defendant from using the building as a garage, and from storing gasoline therein. The suit is here on appeal from the decree of the superior court dismissing the bill.

The defendant is an employee of one Israel Sisson, the real owner of the garage property. In 1919 Sisson bought the land, and in February, 1920, had it conveyed to Isaac Gluck and Lena Yarchin. On February 2, 1920, Gluck and Yarchin filed a petition with the board of street commissioners of the city of Boston for a permit to erect a public garage and for a license to keep, store and sell 1,000 gallons of gasoline at the premises in question. A hearing was had thereon, after the publication of a notice in a Boston newspaper, and the mailing of a copy to owners of record of abutting land. The fire commissioner making no objection, the street commissioners granted the petition on March 1, 1920, and the mayor approved on March 23. On March 24 the street commissioners issued a certificate that a license was granted to Gluck and Yarchin ‘to erect, maintain and conduct a public garage’ at 395-399 Columbia road (which was later approved by the building commissioner), and another certificate of a license for keeping, storing and selling 1,000 gallons of gasoline, in a tank underground in said building. This latter license was approved by the fire commissioner.

Appeals were taken from the decision of the street commissioners to the state fire marshal, and after a hearing he confirmed their action on June 3, 1920, and at the same time granted a special license for the same. The objectors appealed from the state fire marshal to the commissioner of public safety, who heard the parties and approved the action of the fire marshal. On June 16, 1920, an appeal was taken to the superior court, under St. 1919, c. 350, § 109, to secure an annulment of the order of the commissioner of public safety. The defendant Wexler who became legal owner of the garage premises on June 4, and transferee of the licenses, was permitted on July 21 to intervene in the proceedings in the superior court as a party defendant. A final decree dismissing the bill was entered in that court on February 16, 1921, and an appeal was taken to this court, which was still pending at the time of the hearing of the present suit.

[2] 1. The first contention of the plaintiffs is that the board of street commissioners had no authority to issue the licenses. In issuing the license or permit to erect the garage (apart from the use of gasoline in connection therewith) the street commissioners acted under the powers directly and exclusively vested in them by St. 1913, c. 577, as amended by St. 1914, c. 119. The gasoline license was issued by them under a delegated authority from the fire prevention commissioner for the metropolitan district, acting under St. 1914, c. 795, § 4. That section empowered said commissioner ‘to delegate the granting and issuing of any licenses or permits authorized by this act * * * to the head of the fire department or to any other designated officer in any city or town in the metropolitan district.’ See now G. L. c. 148, § 31. Acting under this statute the fire prevention commissioner on September 10, 1915, delegated to the mayor and board of street commissioners power to issue gasoline licenses such as that in question. It was specifically provided therein:

‘This delegation of power shall continue in force until a revocation thereof shall have been filed with the city clerk of said city of Boston.’

The claim of the plaintiffs is that this delegated authority ceased when St. 1919, c. 350, § 99, abolished the office of fire prevention commissioner. But by that statute the powers of the commissioner were transferred to and vested in the department of public safety, and especially in the state fire marshal, an official of that department. Said section 99 provided:

‘All the rights, powers, duties and obligations of * * * said offices [including that of fire prevention commissioner] are hereby transferred to, and shall hereafter be exercised and performed by the department of public safety * * * which shall be the lawful successor of * * * said boards and offices.’

A division of fire prevention was created in said department, under the charge of a director to be known as state fire marshal (section 101), and he succeeded to the duties of the former fire prevention commissioner, under the supervision of the commissioner of public safety (section 104). By the express terms of section 6:

‘All orders, rules and regulations made by any officer, board, commission or other...