Marcus v. Comm'r of Pub. Safety

• Decision Date: 01 March 1926
• Citation: 255 Mass. 5,150 N.E. 903
• Parties: MARCUS v. COMMISSIONER OF PUBLIC SAFETY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 5

150 N.E. 903

MARCUS

v.COMMISSIONER OF PUBLIC SAFETY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1926.

Case Reserved from Supreme Judicial Court, Suffolk County.

Original petition for writ of certiorari by Harry Marcus against the Commissioner of Public Safety of the Commonwealth of Massachusetts and others. Case reserved by a single justice for the full court on the petition, demurrer, and return. Petition dismissed.F. M. Carroll, of Boston, for petitioner.

J. E. Hannigan and T. A. Mullen, both of Boston, for Queensbury Realty co.

L. Goldberg, Asst. Atty. Gen., for respondent Commissioner.

RUGG, C. J.

This is a petition for a writ of certiorari. The material facts are that the petitioner is the record owner of an apartment house in the general residence district in Boston, abutting upon land owned by the Queensbury Realty Company. To that company on June 23, 1925, the board of street commissioners of Boston granted a permit to erect a public garage and a license to keep and store gasoline, both to be exercised on its lot. The petitioner appealed from that decision to the state fire marshal, who, on July 18, 1925, after due proceedings revoked that permit and license. The Queensbury Realty Company appealed from that revocation to the commissioner of public safety, who, after hearing, disapproved on August 28, 1925, the action of the state fire marshal. The question argued is whether the commissioner of public safety had jurisdiction to entertain the appeal.

[1] The Boston Zoning Act (St. 1924, c. 488), so far as relevant, governs the rights of the parties. By section 3 it is provided that, in single residence districts no building shall be erected except for uses designated, one of which, subsection (9), is:

‘Garages * * * provided after public hearing the board of street commissioners grants a license therefor. * * * From any decision of said commissioners granting any such license any person aggrieved may take an appeal, * * * to the state fire marshal, who may after public hearing suspend or revoke any such license.’

It is provided in section 4 that:

In ‘a general residence district no building * * * shall be erected * * * except for one or more of the following uses: (1) Any use permitted in a single residence district.’

All provisions of section 3(9) with respect to garages in single residence districts are thus imported into section 4 and made applicable to garages in general residence districts. The effect of these provisions is that a garage may be erected in a general residence district upon the same conditions and limitations and in accordance with the same procedure as is required for the erection of a garage in a single residence district, and in no other way.

It is provided in section 1 of the Boston Zoning Act that words not defined in the act or in the building law of Boston shall be construed or defined ‘as in the regulations of the department of public safety.’ The implication of this is that the authority given to the state fire marshal is conferred upon him as a member of the department of public safety. It is provided by section 22 of the Boston Zoning Act amongst other matters that:

This ‘act shall not interfere with, abrogate, annul or repeal any statute previously enacted, relating to the use of buildings or premises. * * *’

It is in the light of these provisions that the interpretations of G. L. c. 147, § 5, must be approached. That section provides that:

‘Any person affected by an order of the department [of public safety] or of a division or office thereof, may * * * appeal to the commissioner, who shall thereupon grant a hearing, and after such hearing may amend. suspend or revoke such order. Any person aggrieved by an order approved by the commissioner may appeal to the superior court. * * *’

A somewhat analogous provision is found in G. L. c. 148, §§ 30, 31, 45, whereby the state fire marshal is given authority to delegate the power to issue licenses or permits, amongst other matters, for the keeping and storing of gasoline in Boston, and the right of appeal to the state fire marshal is conferred on a person...