M. Doyle & Co. v. Commissioner of Public Works of Boston

• Decision Date: 09 January 1952
• Citation: 328 Mass. 269,103 N.E.2d 238
• Parties: M. DOYLE & CO., Inc. v. COMMISSIONER OF PUBLIC WORKS OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 238

103 N.E.2d 238

328 Mass. 269

M. DOYLE & CO., Inc. v. COMMISSIONER OF PUBLIC WORKS OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1951.

Decided Jan. 9, 1952.

J. B. Brennan, Boston, M. A. Molloy, Boston, for petitioner.

W. H. Kerr, Boston, for respondent.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is a petition for the issuance of a writ of mandamus directing the commissioner of public works of Boston to issue to the petitioner a permit 'permitting it to remove and transport rubbish through the Streets of Boston in accordance with the law or ordinance made and provided.' A judge of the Superior Court made findings of material facts and entered an order dismissing the petition. The petitioner has appealed from the judgment entered pursuant to that order. See G.L. (Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4.

The petitioner applied to the respondent as commissioner of the public works department on July 12, 1951, for a permit, to be issued under the Revised Ordinances of Boston (1947), c. 40, § 14, to remove and transport rubbish through the streets of Boston. At the bottom of the blank or form on which the application was submitted there was printed under the heading 'Warning' '3. This permit does not allow you to collect rubbish in any of the contract districts without permission of the contractor in such district.'

Chapter 40, § 14, of the Revised Ordinances of Boston (1947) provides that no person 'shall in any street carry house-dirt, house-offal or other refuse matter * * * except in accordance with a permit from the commissioner of public works approved by the health commissioner.' Section 1 of c. 27 of the same Revised Ordinances provides in part that the department of public works at its own expense shall collect house offal, garbage, refuse and rubbish from dwelling houses; and that collection of such rubbish from hotels, restaurants and stores may be charged to the producers at the rate of twenty cents per barrel. On July 13, 1951, the petitioner's application for a permit was denied by the respondent and the petitioner was notified of the denial in a letter which stated the reasons therefor as follows: '1. Failure to obtain the written consent of the contractor for the district in which you propose to collect and remove rubbish; 2. Failure to provide for the full coordination of your work with that of the district contractor; and 3. Failure to show need for additional rubbish collection vehicles in the district in which you propose to collect and remove rubbish, with the impediments to vehicular traffic incident to the presence of such additional vehicles.' The respondent also stated in the letter that 'it has been the long standing policy of this office not to grant permits for the removal and transportation of rubbish to others than such district contractors and those who, by reason of having obtained the written consent of their respective district contractors, may be treated as their agents.'

James A. Freeney, Inc., was a district contractor for the collection and removal of garbage and rubbish for the year 1951 under a contract with the city of Boston. The district covered by its contract included the north and west ends of Boston, the district for which the petitioner was seeking its permit. The petitioner failed to obtain from this district contractor its consent for the removal and transportation by the petitioner of rubbish in the district. The petitioner alleges that the denial of its application by the respondent was an abuse of the latter's discretion and that in refusing to grant the permit he acted in an arbitrary, capricious, irregular, unlawful, unreasonable, and unauthorized manner. The judge found that the petitioner 'is a proper party to do the work called for by the permits and has...