Inhabitants of Winthrop v. New England Chocolate Co.

• Decision Date: 27 February 1902
• Citation: 62 N.E. 969,180 Mass. 464
• Parties: INHABITANTS OF WINTHROP v. NEW ENGLAND CHOCOLATE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 464

62 N.E. 969

INHABITANTS OF WINTHROP v. NEW ENGLAND CHOCOLATE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1902

COUNSEL

John E. Abbott, for appellant.

Daggett & Young, for appellee.

OPINION

HAMMOND J.

The only statute upon which the plaintiff relies for the authority to pass the by-law in question is St. 1894, c. 481 § 11. Assuming that the town, by its acceptance of this section or preceding statutes, was authorized to act under the section, the question is whether the by-law is within the authority thereby conferred. The authority is to pass by-laws 'for the prevention of fire and the preservation of life,' to 'regulate the inspection, materials construction, alteration, and use of buildings and other structures.' The statute has nothing to do with the regulation of offensive trades, but its clear purport is to confer the authority to regulate the things therein named only as far as may be reasonably necessary to prevent fire and preserve life. With this view of it, we proceed to the examination of the by-law. It provides that: 'No person shall, within 100 feet of any other person's building or land erect or use any building for a planing mill wood-working establishment, hotel or public hall, or for any manufacturing or other hazardous business, without first obtaining a permit in writing from the selectmen, and no such permit shall be granted until after such notice to owners of adjoining property as the selectmen shall order, and after a hearing pursuant to such notice.' It will be observed that it is broad enough to cover any building, no matter how small, if only large enough for any kind of manufacturing business, and no matter of what materials composed. A one-story building of brick or stone cannot be erected or used by a person without a permit for a public hall, if within 100 feet, not only of any other person's building, but even of his land. It cannot be necessary to multiply illustrations to show that as an ordinance to prevent fire or preserve life it is beyond the authority conferred by the statute, and unreasonable. Nor is it any answer to say that the whole matter is left to the selectmen, and that they may be presumed to act in a reasonable manner. It does not expressly or by necessary implication require them to adjudicate and determine that it is necessary to prohibit the proposed erection and use for the prevention of fire or the...