Goldstein v. Conner

• Decision Date: 24 May 1912
• Parties: GOLDSTEIN v. CONNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 57

98 N.E. 701

GOLDSTEIN v. CONNER.

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1912

COUNSEL

David Stoneman, Alexander I. Stoneman, and Alexander G. Gould, all of Boston, for petitioner.

H. L Boutwell, City Sol., of Boston, for defendant.

OPINION

RUGG C.J.

This is a petition for a writ of mandamus brought by a landowner in Malden to compel the building inspector of that city to issue to him a permit for the erection of a building. The city of Malden has accepted the provisions of chapter 104 of the Revised Laws, whereby it might under section 1 'for the prevention of fire and the preservation of life by ordinances * * * not inconsistent with law and applicable throughout the whole or any defined part of its territory regulate the inspection, materials, construction, alteration and use of buildings and other structures within its limits.' In reliance upon the authority assumed to have been conferred by this statute, the city of Malden passed two sections of an ordinance, which are printed in a footnote. ^[1]

The petitioner caused to be prepared a set of plans and specifications which complied with the ordinances of the city and which were filed with the defendant. The board of aldermen of the city gave a hearing to the petitioner on his application for a license to build upon his land a one-story brick building to be occupied for mercantile purposes, and denied his application. It is not contended that the building, if built in accordance with the plans and specifications, would violate any regulation of the city as to material, location, size or construction. The defendant has refused to issue a permit to build on the ground that he is not authorized to do so until the board of aldermen have granted a license.

The case is in brief that the city of Malden has enacted an ordinance to the effect that no one can erect a building for mercantile uses without a license from the board of aldermen and the board of aldermen refuse to grant such license when the proposed building complies in every respect with all building laws. Such an ordinance is beyond the scope of R. L. c. 104, § 1. The construction of buildings for mercantile, purposes is a lawful use of property. It has no inherent tendency to impair the health or comfort of the people, or to increase unduly the risk of fire. It does not interfere with public peace, morality or safety. It is not a use of property which in the present state of society and of civilization can be absolutely prohibited in the cities and towns of the commonwealth. Cases like Newton v. Joyce, 166 Mass. 83, 44 N.E. 116, 55 Am. St. Rep. 385, Com. v. Parks, 155 Mass. 531, 30 N.E. 174, Quincy v. Kennard, 151 Mass. 563, 24 N.E. 860, Com. v. Ellis, 158 Mass. 555, 33 N.E. 651, Belmont v. N.E. Brick Co., 190 Mass. 442, 77 N.E. 504, and Trowbridge v. Tupper, 210 Mass. 378, 96 N.E. 1096, plainly are distinguishable.

The Legislature has ample power to regulate and to authorize cities and towns to regulate by general rules the materials, height, plans, manner of construction, exits and other essentials of buildings and the uses to which they may be put for the prevention of fires and guarding the safety of those who frequent them. R. L. c. 104, § 1, is a constitutional exercise of the police power. Salem v. Maynes, 123 Mass. 372; Com. v. Hayden, 97 N.E. 783.

But this ordinance is not of that class. It has no legitimate tendency toward prevention of fires nor the preservation of life. It is an absolute prohibition of the construction of a mercantile building, except in pursuance of a license from the board of aldermen. It does not regulate the issuance of the license in accordance with any general principles. It furnishes no guide to which the municipal board may look for instruction, or to which the landowner may appeal for a determination of the correctness of his conduct. It purports to confer unrestrained power upon the municipal authorities to give or withhold the license by an arbitrary exercise of will and without reference to the property rights of the applicant or the excellence of the proposed building. It does not relate to inspection of buildings in process of...