Jaffarian v. Bldg. Com'r of City of Somerville

• Decision Date: 03 April 1931
• Citation: 275 Mass. 267,175 N.E. 641
• Parties: JAFFARIAN et al. v. BUILDING COM'R OF CITY OF SOMERVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 267

175 N.E. 641

JAFFARIAN et al.

v.BUILDING COM'R OF CITY OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

April 3, 1931.

Exceptions from Supreme Judicial Court, Middlesex County; J. C. Crosby, Judge.

Proceeding by Edward Jaffarian and others for a writ of mandamus to John H. Kelley, Building Commissioner of the City of Somerville. Bill dismissed, and plaintiff brings exceptions.

Exceptions overruled.

See also 175 N. E. 639.

F. R. Mullin and J. E. Hannigan, both of Boston, for plaintiff.

D. J. Kelley, City Sol., of Boston, for respondent.

RUGG, C. J.

The petitioners seek by this proceeding to compel the respondent, the building commissioner of the city of Somerville, to issue a permit for the erection of a building upon their land. An auditor was appointed whose findings were adopted by the single justice. These findings, so far as here material, were: ‘I find, upon common knowledge, that miniature golf courses have become popular all over the country; that the game calls for quiet, order and decorum, and that these are generally, voluntarily maintained; that many of said courses are established in residential and industrial districts, and patrons using said courses frequently come on foot from the immediate neighborhood; that the playing of the game is as free from evil tendencies as is the standard game of golf; that it is enjoyed by persons of all ages and classes; that so far as it is a public diversion or amusement, it is a wholesome and healthful pastime and no substantial cause for complaint in respect of public morals or welfare or safety has arisen from the use of the many courses established. * * * Admission to the course is to be free. A so-called green fee is to be charged, similar to the green fee charged on regular size golf courses to those wishing to practice or receive instruction in certain golf strokes, but it is not obligatory on those admitted to the premises to use the golf course and pay a green fee or any other charge. Instruction in golf is to be included in the charge or green fee, which is paid after admission; * * * the course is to be conducted and operated for the purpose of permitting those using it to learn some of the golf strokes, and to practice or perfect their skill in putting or other golf strokes and to receive exercise and entertainment thereform. receive exercise and entertainment therefrom. practice in the office of the Building Commissioner for the City of Somerville, not to grant building permits for the construction of a building when the carrying on of the business in said building is dependent upon a license or permit to be obtained from another department; that in that event, the Building Commissioner requires that the license or permit for the operation of said business be first obtained before he will grant a building permit; that the petitioners applied for a license to conduct a miniature golf course and that said application was rejected by the Mayor * * * that it was the intention of the petitioners to provide instruction to those persons who would request it; that said instruction would only be given to those persons who would pay a green fee for the use of the course; that admission to the course was to be free and that the general public was to be invited to play on the course.’

It is provided by G. L. c. 140, § 181, that, ‘The mayor or selectmen may * * * grant, upon such terms and conditions as they deem reasonable, a license for theatrical exhibitions, public shows, public amusements and exhibitions of every description * * * to which admission is obtained upon payment of money or upon the delivery of any valuable thing, or by a ticket or voucher obtained for money or any valuable thing, or in which after free admission, amusement is furnished upon a deposit of money in a coin controlled apparatus. * * *’

We are of opinion that the miniature golf course proposed to be constructed and used as indicated in the auditor's report constitutes a public amusement within the meaning of this section. While it has aspects of athletic interest, it has the attributes of a public amusement. Its construction and arrangement appear to be designed to attract the attention of...