Kidder v. City Council of Brockton

• Decision Date: 11 September 1952
• Citation: 107 N.E.2d 774,329 Mass. 288
• Parties: KIDDER v. CITY COUNCIL OF BROCKTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 774

107 N.E.2d 774

329 Mass. 288

KIDDER v. CITY COUNCIL OF BROCKTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1952.

Decided Sept. 11, 1952.

G. B. Rowlings and R. G. Wellings, Boston, for petitioner.

S. Smolensky, City Sol., Brockton, for respondent.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and SPALDING, JJ.

QUA, Chief Justice.

This is a petition for a writ of certiorari to quash the decision of the city council of Brockton denying two applications by the petitioner under G.L. (Ter.Ed.) c. 148, § 13, as most recently amended by St.1951, c. 329, for licenses to keep and sell gasoline and related products, all for the intended purpose of an automobile service station to be located at the southeasterly corner of Belmont and Ash streets. The respondents' return includes a transcript of the evidence and the exhibits introduced at the hearing before the council. G.L.(Ter.Ed.) c. 249, § 4, as amended by St.1943, c. 374, § 1. G.L.(Ter.Ed.) c. 213, § 3, Tenth B, inserted by St.1943, c. 374, § 3. Rule 117 of the Superior Court (1945). In the Superior Court judgment was entered dismissing the petition. The petitioner appeals. G.L.(Ter.Ed.) c. 213, § 1D, as inserted by St.1943, c. 374, § 4.

The contention of the petitioner is that the decision of the council was arbitrary and capricious, and that it was not warranted by the evidence. 'There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.' Morrison v. Selectmen of Weymouth, 279 Mass. 486, 493, 181 N.E. 786, 789. If error of law is claimed it must be made to appear upon the face of the return, and if the return is inadequate the petitioner must take steps to have it extended to show the error which he claims. Tileston v. Street Commissioners of City of Boston, 182 Mass. 325, 65 N.E. 380; Newcomb v. Board of Aldermen of Holyoke, 271 Mass. 565, 171 N.E. 826; Morrissey v. State Ballot Law Commission, 312 Mass. 121, 123-127, 43 N.E.2d 385; Worcester Gas Light Co. v. Water Commissioners of the Woodland Water District of Auburn, 314 Mass. 60, 63, 49 N.E.2d 447; Real Properties, Inc., v. Board of Appeal of Boston, 319 Mass. 180, 65 N.E.2d 199, 168 A.L.R. 8; Wright v. Health Commissioner of Boston, 322 Mass. 535, 78 N.E.2d 629; Clarke v. Board of Collegiate Authority, 327 Mass. 279, 282, 98 N.E.2d 273.

No error appears on the face of the return.

The council was not limited to the matter of fire risk. They could take into account other considerations affecting the public welfare. St. James Building Corp. v. Commissioner of Public Safety, 260 Mass. 548, 555, 157 N.E. 629; Hanauer v. State Fire Marshal, 271 Mass. 506, 510-511, 171 N.E. 428; Rawding v. State Fire Marshal, 272 Mass. 307, 172 N.E. 255; Scudder v. Board of Selectmen of Sandwich, 309 Mass. 373, 376, 34 N.E.2d 708.

There was evidence before the council tending to show that the vicinity, although zoned for business, which would permit a filling station, was still to a great extent residential in character; that Belmont Street was only thirty-four feet wide between curbs, so that, with parking permitted on both sides, there was dependable room for only two lanes of traffic, one lane in each direction; that the street was heavily travelled; that nearly seven thousand vehicles approached the intersection daily on that street and nearly a thousand more on Ash Street; that the proposed station was to have two entrances on Belmont Street and one on Ash Street; that thirty or more children crossed Ash Street at the...