Gen. Baking Co. v. Bd. of St. Com'rs of Boston

• Decision Date: 01 July 1922
• Parties: GENERAL BAKING CO. v. BOARD OF STREET COM'RS OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 194

136 N.E. 245

GENERAL BAKING CO.

v.BOARD OF STREET COM'RS OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Exceptions from Supreme Judicial Court, Suffolk County.

Certiorari proceeding by the General Baking Company against the Board of Street Commissioners of the City of Boston, to quash their proceedings in revoking a license or permit issued to the petitioner to erect a garage. Writ granted, and defendants bring exceptions. Exceptions overruled.

The bill of exceptions stated that the license was granted on condition of strict compliance with the laws and regulations of the state fire marshal, that no contention was made that the petitioner had violated the laws or any regulation, and that the license was revoked without notice or hearing. The single justice ruled that the street commissioners had no power or authority to revoke the license or permit.

John A. Sullivan, of Boston, for petitioner.

E. Mark Sullivan, Corp. Counsel, and Joseph P. Lyons, Asst. Corp. Counsel, both of Boston, for respondent.

RUGG, C. J.

It was provided by St. 1913, c. 577, as amended by St. 1914, c. 119, that in Boston no building shall be erected for or maintained as a garage ‘until the issue of a permit therefor by the board of street commissioners of the city after notice and a public hearing upon an application filed with said board.’ There are specifications as to the application for permit, notice of the hearing, and the considerations which must be taken into account by the board before determining whether permit shall be issued.

The statute is a valid exercise of police power. Storer v. Downey, 215 Mass. 273, 102 N. E. 321;Wright v. Lyons, 224 Mass. 167, 112 N. E. 876;Pierce Oil Corporation v. City of Hope, 248 U. S. 498, 39 Sup. Ct. 172, 63 L. Ed. 381.

The plaintiff made application and after due proceedings was granted a permit on September 27, 1921, to erect, maintain and conduct a garage at a specified location. All this was in accordance with the statutes. Thereafter the board on December 19, 1921, without notice or hearing revoked the permit. No contention is made that the petitioner has violated the laws of the state or the regulations of the state fire marshal. St. 1914, c. 795.

The single point presented is the exception to the ruling that the board had no power thus to revoke the permit. No question as to form of procedure or of remedy has been raised.

There is no provision in the statute authorizing the board to revoke a permit once granted. This is of some significance in view of the large number of instances to be found in our statutes where the power to revoke is conferred in express terms. See, for example, numerous sections of G. L. c. 140, relating to ‘Licenses.’ See, also, G. L. c. 101, §§ 3, 30; Id. c. 111, §§ 61, 143, 152, 153, 158; Id. c. 112, §§ 2, 18, 28, 40, 55, 61, 71, 74; Id. c. 130, §§ 89, 105, 121, 132, 139; Id. c. 131, §§ 14, 40, 84, 87.

This is not a permit respecting a pure personal privilege, nor is it dependent in its nature upon governmental permission, where there may be revocation for sufficient legal reason even in the absence of express power to revoke. Union Institution for Savings v. Boston, 224 Mass. 286, 112 N. E. 637;Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95, 126 N. E. 456;People v. Department of Health, 189 N. Y. 187, 82 N. E. 187,13 L. R. A. (N. S.) 894.

The statute under which this permit was issued is a regulation of the right of ownership of land. The erection and use of buildings for innocuous purposes cannot ordinarily be left to the untrammeled and unregulated discretion of local officers. Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969;Goldstein v. Conner, 212 Mass. 57, 98 N. E. 701;Kilgour v. Gratto, 224 Mass. 78, 112 N. E. 489. See Foss v. Wexler, 241 Mass. --, 136 N. E. 243. By analogy of reasoning the taking away of a permit once granted to make valuable and expensive improvements upon land, without hearing and without the statement of any grounds, in the absence of express statutory authority...