Kilgour v. Gratto

• Decision Date: 16 May 1916
• Citation: 112 N.E. 489,224 Mass. 78
• Parties: KILGOUR v. GRATTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 78

112 N.E. 489

KILGOUR

v.GRATTO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 16, 1916.

Report from Supreme Judicial Court, Middlesex County.

Petition for writ of mandamus by Dwight F. Kilgour against William Gratto. Case reported. Writ to issue.Robert P. Clapp and Hervey W. King, both of Boston, for petitioner.

S. R. Wrightington, of Boston, for respondent.

RUGG, C. J.

This is a petition for a writ of mandamus to compel the building inspector of the town of Lexington to issue a permit for the construction of a one-story building of cement blocks and brick upon the petitioner's land in Lexington, to be used as a drafting room and mechanical laboratory or workshop, to contain some small machinery for the making of models and devices for testing, developing and illustrating his inventions; but manufacturing is to be carried on to a slight extent only, the maximum of workmen being four. Power is to be furnished by an electric motor. The department to which the petitioner's inventive skill is directed is not stated. It has been found in substance that as a rule there is greater danger of fire, explosion or other like accident in a building used as a factory where a dynamo for motive power is set than in other buildings such as dwelling houses, with reference not only to the building itself but to other buldings in the vicinity, and that sometimes danger to the health of dwellers in neighboring buildings may be increased by the location of a factory, beyond that which would be caused by a dwelling house, and that there are other buildings mostly of wood in close proximity to the building proposed by the petitioner. There is no finding as to the danger in any particular respect which the petitioner's proposed building would be likely to cause.

The town of Lexington accepted the provisions of R. L. c. 104, which was the corresponding provision of the earlier law now embodied in St. 1913, c. 655. Section 1 of that act, so far as here material, is in the margin, the additions to the words of the earlier statute being in italics.¹ Pursuant to the authority of the latter statute, the town adopted an elaborate and comprehensive code of building by-laws. The pertinent provisions of that code² in brief are that no building shall be erected for use as a factory without a permit countersigned by the selectmen. The petitioner's proposed building is a factory within the Code, because electrical power is to be used in aid of manufacturing processes to a small extent. The plans and detailed descriptions of the petitioner's proposed building in all structural respects conform fully to the requirements of the bylaws, which in this regard contain many minute regulations. But the selectmen refuse to grant the permit and no reason therefor is assigned in the record.

The effect of the by-laws is to vest in the selectmen an absolute and uncontrolled discretion whether to grant or to refuse a permit for the construction of a building like that proposed by the petitioner anywhere within the limits of the town.

The business proposed to be carried on by the petitioner is as harmless as can well be imagined of any manufacturing enterprise. It is a lawful business. The use of inventive skill is a close approach to the exercise of a natural right. In essence it is simply working toward useful ends according to the measure of one's innate endowments. The material and structure of the building confessedly satisfy the exacting requirements of the by-laws. The motive power proposed to be installed commonly is supposed to be as clean, healthful and free from danger under proper regulations as any now available. The construction and use of factories for manufacture at some place are necessities of present conditions of life. The question presented is whether the Legislature has authorized the passage by towns of by-laws which subject the right of everybody to construct a factory building to the unrestrained permission of local officers. While the terms of St. 1913, c. 655, in some respects are broader than those of earlier statutes, in that under it the municipality may enact by-laws for the preservation of ‘health and morals' and may regulate the ‘repair, height, area, location,’ of buildings, they still must confine their regulations in this respect to ‘by-laws.’ By-law, as applied to the subject-matter, means a general rule. It should afford some standard of conduct to the landowner so that he may know where to locate, how to design, construct, equip and otherwise prepare for use his proposed building, and some principle to direct the licensing board as to the exercise of its judgment and discretion in issuing or denying the permit. A provision that the right to erect a factory, however perfect in design, noncombustible in material, safe and sanitary in equipment,cannot be exercised without permission from local officers not enlightened, directed or curbed by any established principle, is not in a proper sense a by-law as that word is used in this statute. Of course a wide power exists as to the regulation of harmful and noxious occupations and the location and erection of buildings for uses which either are inherently or easily may become nuisances. It is to be presumed that the legislative delegation of...