Krupp v. Building Com'r of Newton

• Decision Date: 27 April 1950
• Citation: 92 N.E.2d 242,325 Mass. 686
• Parties: KRUPP et al. v. BUILDING COMMISSIONER OF NEWTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 686

92 N.E.2d 242

KRUPP et al. v. BUILDING COMMISSIONER OF NEWTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 27, 1950

Argued April 3 1950.

H Brown, Boston, for petitioners.

H. Rubin, Boston for respondents.

Before QUA, C. J and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ. [Copyrighted Material Omitted]

LUMMUS, Justice.

This is a petition filed October 17, 1949, by eighteen residents of Newton owning residential property near the property of Beacon Construction Company, for a writ of mandamus. The petition alleges the following. Beacon Construction Company owns three lots of land in Newton. It applied to the city of Newton for three permits to build on said several lots 'light gauge structural steel prefabricated houses, porcelain finish, commonly referred to as 'Lastron' houses.' Permits accordingly were issued on September 9, 1949. The steel to be used in said houses is not as thick as is required by the city ordinances.

By G.L. (Ter.Ed.) c. 22, § 13, as redrafted by St.1945, c. 645, § 1, and amended by St.1945, c. 722, § 3, and by St.1946, c. 522, a board of standards was created. General Laws (Ter.Ed.) c. 143, § 3J, inserted by St.1947, c. 631, § 1, provides that 'The board of standards shall make and, from time to time, may amend, alter or repeal, regulations setting forth alternatives to the materials and to the type or method of construction, specified in the requirements contained or to be contained in any ordinance, by-law, rule or regulation, or in any special law applicable to a particular city or town, relating to the construction, reconstruction, alteration, repair, demolition, removal, use or occupancy, and to the standards of materials to be used in such construction, reconstruction, alteration, repair, demolition, removal, use or occupancy, of buildings or other structures used for dwelling purposes in any city or town, * * * such regulations to be so drafted that such alternatives shall provide adequate performance for the purposes for which their use is intended, such adequate performance to be determined in conformity to accepted standards of engineering practice as to the materials and type or method of construction therein referred to, or any of them.' General Laws (Ter.Ed.) c. 143, § 3K, inserted by St.1947, c. 631, § 1, and amended by St.1948, c. 438, § 2, and St.1949, c. 530, provides as follows: 'In cases where the plans and specifications accompanying an application fail to comply with the provisions of ordinances, by-laws or regulations, or any special law applicable to a particular city or town and relative to such construction, reconstruction, alteration, repair, demolition, removal, use or occupancy, an inspector of buildings shall issue a permit or certificate for such construction, reconstruction, alteration, repair, demolition, removal, use or occupancy if said plans and specifications comply with the alternatives set forth in the regulations referred to in section three J.

'In cases in which the plans and specifications accompanying an application fail to comply with the provisions referred to in the first paragraph of this section, and existing regulations setting forth alternatives, as provided in section three J, do not apply, in whole or in part, to those portions of such plants and specifications as fail to comply with said provisions, an inspector of buildings shall issue a permit or a certificate if the applicant submits a statement in writing, accompanied by an affidavit from a registered engineer, that the portions of such plans and specifications which fail so to comply and to which existing regulations setting forth alternatives cannot be applied, provide adequate performance for which their use is intended, such adequate performance to be determined in conformity to accepted standards of engineering practice.'

The petition alleges that on February 16, 1949, the board of standards under § 3J promulgated Standard 4 authorizing the construction of metal prefabricated houses, that the plans and specifications submitted by the Beacon Construction Company complied with said Standard 4, and that the permits issued to it by the building commissioner were issued under the first sentence of § 3K. The petition alleges that the statutory provisions for a board of standards are unconstitutional. It prays for a writ of mandamus commanding the building commissioner to revoke said permits.

The building commissioner, and the Beacon Construction Company, which had been made a respondent, demurrer, on the grounds that (1) the petitioners have no standing to bring the petition, (2) they have a plain, adequate and complete remedy in equity, and (3) they state no case for relief. The demurrers were sustained, and the petitioners appealed.

Article 30 of the Massachusetts Declaration of Rights provides that 'In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.' The general power to legislate cannot be delegated. Brodbine v. Revere, 182 Mass 598, 600, 66 N.E. 607; Boston v. Chelsea, 212 Mass. 127, 128, 98 N.E. 620. But when the Legislature has adopted a policy it may delegate to a board or an officer the working out of the details of that policy. Commonwealth v. Hudson, 315 Mass. 335, 341, 342, 52 N.E.2d 566. Opinion of the Justices, 315 Mass. 761, 768, 52 N.E.2d 974, 150 A.L.R. 1482; Lynch v. Commissioner of Education, ...