Leach v. State Fire Marshal

• Decision Date: 25 January 1932
• Citation: 278 Mass. 159
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FRANKLIN A. LEACH & others v. STATE FIRE MARSHAL& others.

278 Mass. 159

FRANKLIN A. LEACH & others v. STATE FIRE MARSHAL& others.

Supreme Judicial Court of Massachusetts, Suffolk.

January 25, 1932

January 6, 7, 1932.

Present: RUGG, C.

J., CROSBY, WAIT SANDERSON, & FIELD, JJ.

State Fire Marshal. License. Petroleum Products. Evidence, Competency. Statute Construction.

The State fire marshal, hearing an appeal of parties aggrieved by the granting of licenses for the keeping, storage and sale of petroleum products in a city, properly may refuse to receive in evidence an order by his predecessor in office, revoking licenses previously granted for a similar purpose.

It was proper for the State fire marshal to proceed with the hearing of the appeal above described although he was informed that persons other than the licensees were expecting to operate under the licenses: it is for the licensing authority and not for the marshal to decide whether others than the licensees may be permitted so to operate.

The State fire marshal hearing the appeal above described did not purport to usurp the power of granting the licenses nor invade the power of the department of public safety, nor act in excess of his authority in determining that, if certain additional conditions, specified by him in detail, were observed, a fire hazard would not result from the exercise of the license and in approving the licenses provided such conditions were observed, but adding that, if "the said conditions are not observed,

I find that a fire hazard would exist in which event I order that the said licenses be revoked"; and such action on his part did not constitute ground for maintaining a suit in equity under G.L.c. 147, Section 5, as amended by St. 1930, c. 399.

BILL IN EQUITY filed in the Superior Court on November 25, 1931, under G.L.c. 147, Section 5, as amended by St. 1930, c. 399, and described in the opinion.

The defendants demurred. The demurrers were heard by Dillon, J., and were overruled. The judge, stating that he was of opinion that the demurrers raised questions of law that might properly be reported, and that said questions so affected the merits of the controversy that before further proceedings the matters ought to be determined by this court, reported the suit for that purpose.

F.T. Leahy, for M. Thomas Green, trustee. C.F. Lovejoy, Assistant Attorney General, for State Fire Marshal.

L.A. Mayberry, (H.H. Ham, H.L. Barrett & S. Abrams with him,) for Boston Port Development Company.

M. Wigderson, for the plaintiffs.

SANDERSON, J. This bill of complaint was brought by taxpayers and owners of property in Revere against the Boston Port Development Company and M. Thomas Green, trustee, purporting to be licensees for the keeping, storage and sale of petroleum products in Revere, and John W. Reth, State fire marshal. The plaintiffs allege that the bill was brought by way of appeal under the statutes, from the decision, order or finding of the fire marshal, and they seek to have his action declared of no effect except in so far as he found that a fire hazard would result from the exercise of the licenses granted by the city council of Revere, and they also seek to have the licenses granted declared void, and other relief.

The bill alleges that on June 8, 1931, the city council of Revere voted to grant a license to the Boston Port Development Company subject to certain restrictions for the keeping, storage and sale of petroleum products on land in Revere therein described, and also a similar license to M. Thomas Green, trustee; that after these orders were passed the petitioners, as aggrieved persons, within the time provided by law appealed to the State fire marshal on the ground that the exercise thereof would constitute a fire or explosion hazard, and asked that the same be revoked; that the State fire marshal, after notice, had a public hearing on the appeals at which testimony was introduced tending to prove that the exercise of the licenses would constitute a serious fire and explosion hazard to adjoining property and imperil the lives and safety of the inhabitants, and that evidence was also introduced tending to prove the contrary; that the petitioners offered to submit in evidence an order of the fire marshal's predecessor concerning licenses previously granted for a similar purpose, wherein it was ordered that the licenses be revoked, and that this evidence was erroneously excluded by the present fire marshal; that the defendants Boston Port Development Company and M. Thomas Green, trustee, stated that the licenses would not be exercised by them, but that they had sold or leased the proposed storage location to others and that the fire marshal exceeded his authority in hearing evidence as to the manner in which others who are not the lessees proposed to exercise the licenses; that the fire marshal rendered a decision on November 14, 1931, in which he decided that a fire hazard would not result from the exercise of these licenses provided that specified added restrictions were embodied in the purported licenses and observed, but that if such conditions were not observed a fire hazard would exist and the licenses would be revoked.

The terms of this decision so far as material are as follows: "After notice and hearing, I determine that a fire hazard would not result from the exercise of these licenses, provided that the following conditions are observed; and, therefore, order that the said licenses be approved, provided: That in addition to the restrictions embodied in the licenses granted by the City Council of Revere, the alteration, type and construction of all buildings, racks, platforms, structures, distances between tanks and buildings, the type, capacity and construction of all tanks, the construction of all piers and wharves, the capacity of dikes and construction of same, the fire prevention, fire extinguishment and fire protection equipment and forces, the ingress and egress, the water mains and water supply, the location of fire hydrants, hose and houses, the fire alarm system, the permanent roads, the steam and sewerage system, the sprinkler system, and the foamite foamite generators and distribution system, shall be subject to the approval of the State Fire Marshal and the rules and regulations of the Department of Public Safety. That all tanks shall be of the standard gas tight type, equipped with lightning and flame arresters; and that the construction, use and maintenance of all tanks and containers shall be subject to the approval of the State Fire Marshal and the Department of Public Safety. That the handling and delivery of fuel oil to or from vessels shall be subject to the approval of the State Fire Marshal and the Department of Public Safety. That there shall be maintained within the plant an efficient plant fire brigade. This fire brigade shall be regularly inspected by the Chief of the Fire Department of the City of Revere who shall prescribe rules and regulations for the conduct and operation of said force. That there shall be no refining of petroleum products in any degree. That no storage tank shall be constructed within twelve hundred feet of Winthrop Avenue, seventeen hundred feet of Washburn Avenue, and fifteen hundred feet of Vinal Street. That there shall be devised an approved boom system of fire protection on the water of Chelsea River when vessels are docked and unloading. That the plans and specifications affecting the turning basin in the Chelsea River and the boom fire protection system in...