Meadows v. Town Clerk of Saugus

• Decision Date: 28 March 1956
• Citation: 333 Mass. 760,133 N.E.2d 498
• Parties: Theodore MEADOWS et al. v. TOWN CLERK OF SAUGUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 498

133 N.E.2d 498

333 Mass. 760

Theodore MEADOWS et al. v. TOWN CLERK OF SAUGUS.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 7, 1956.

Decided March 28, 1956.

Israel Bloch, Lynn, for petitioner.

Albion L. Hogan, Town Counsel, Lynn, for respondent.

Before QUA, C. J., and RONAN, WILKINS, COUNIHAN and WHITTEMORE, JJ.

WILKINS, Justice.

This is a petition for a writ of mandamus to compel the town clerk of Saugus to issue to the petitioners or to either of them, 'upon the payment of the required statutory fee, a license to maintain a dog kennel on the premises numbered and known as 58 Walnut Street in the town of Saugus.' The judge ordered a peremptory writ 'to issue requiring her forthwith to issue to the petitioners or to either of them, in accordance with the provisions of § 137A of c. 140 G.L. (Ter.Ed.), upon the payment of the required statutory fee, a license to maintain a dog kennel on the premises 58 Walnut Street, town of Saugus.' The respondent appealed 'from the order of the court that a writ of mandamus issue.'

As the appeal is not from a final judgment, the case is here under G.L. (Ter.Ed.) c. 231, § 96, and not under G.L. (Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4. Town of Needham v. County Com're of Norfolk, 324 Mass. 293, 295, 86 N.E.2d 63; Adamsky v. City Council of New Bedford, 326 Mass. 706, 707, 96 N.E.2d 718; Hannigan v. Board of Appeals of Lowell, 328 Mass. 366, 367, 103 N.E.2d 696; Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 513, 105 N.E.2d 212; Ianelle v. Fire Com'r of Boston, 331 Mass. 250, 251, 118 N.E.2d 757; Klier v. Building Inspector of Lawrence, 333 Mass. ----, 128 N.E.2d 781; Ward v. Selectmen of Scituate, 333 Mass. ----, 128 N.E.2d 776.

The case was heard on a statement of agreed facts. 'Ordinarily by appeal in an action at law no evidence is brought before this court. But an appeal from a decision on facts agreed as evidence is treated as raising the question of law whether on all the evidence the verdict or finding was warranted as matter of law. Ingalls v. Hobbs, 156 Mass. 348, 31 M.E. 286, 16 L.R.A. 51; Harmon v. Sweet, 221 Mass. 587, 598, 109 N.E. 942, and cases cited.' Frati v. Jannini, 226 Mass. 430, 432, 115 N.E. 746, 747; Norton v. Musterole Co., Inc., 235 Mass. 587, 590, 127 N.E. 431; Harrington v. Anderson, 316 Mass. 187, 192, 55 N.E.2d 30.

The judge's findings of fact and rulings of law are no part of the record on the limited appeal afforded by c. 231, § 96. Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 513, 105 N.E.2d 212, and cases cited. Enough appears, however, in the agreed facts to enable us to decide the underlying question of law, which is whether the writ will lie to force the town clerk to issue a kennel license for greyhound racing dogs when the premises where the dogs are to be kept and which are named in the prayer of this petition are in an area zoned for residences and when the maintenance of the kennel in this particular location would be in violation of the zoning by-law of the town.

The petitioners Alfred J. Mioduzewski and Theodore Meadows are father and son, residing at 58 Walnut Street. Alfred had a kennel license for the year expiring March 31, 1954, and Theodore had one for the year expiring March 31, 1955. Each license gave the licensee's address as 58 Walnut Street, and contained the following: 'The dogs to be kept under this license Must be confined to the premises of the owner or keeper and Must be restrained at all times, or must wear a collar or harness and tag. * * * Kennels must be kept in a sanitary condition and open to inspection by proper officials at all times else this license may be revoked.' The license expiring on March 31, 1955, has the following: 'Other Data right hand side of Walnut St. going toward Lynnfield--Bd. of Appeals variance--6 mos.' See, Sheehan v. Board of Appeals of Saugus, 332 Mass. 188, 124 N.E.2d 253. Both petitioners made application for a license for the year beginning April 1, 1955, but were refused on the ground that the maintaining or keeping of dogs on those premises was in violation of the zoning by-law.

In the statute governing the licensing of dogs, 'kennel' is defined as 'one pack or collection of dogs on a single premises, whether maintained for breeding, boarding, sale, training, hunting or other purposes and including any shop where dogs are on sale, and also including every pack or collection of more than three dogs three months old or over owned or kept by a person on a single premises irrespective of the purpose for which they are maintained.' G.L.(Ter.Ed.) c. 140, § 136A, inserted by St.1934, c. 320, § 1, as amended by St.1943, c. 111, § 1. Kennel licenses are regularted by G.L. (Ter.Ed.) c. 140, § 137A, inserted by St.1934, c. 320, § 3, as amended by St.1937, c. 95, and by St.1943, c. 111, § 3, which provides: 'Every person maintaining a kennel shall have a kennel license. * * * Kennel licenses under this section shall be issued by the police commissioner of the city of Boston if the dogs are to be kept under such license in said city or by the clerk of any other town if to be so kept in said town. * * * Such license shall be in lieu of any other license for any dog while kept at such kennel * * *. The holder of a license for a kennel shall cause each dog kept therein to wear, while it is at large, a collar * * * to which shall be securely attached a tag * * *. Such tags * * * shall be furnished to such owner or keeper by the clerk of the town in which such kennel is licensed * * * in quantities not less than the number of dogs kept in such kennel. The fee for each license for a kennel shall be ten dollars if not more than four dogs are kept in said kennel, twenty-five dollars if more than four but not more than ten dogs are kept therein and fifty dollars if more than ten dogs are kept therein * * *. The name and address of the owner of each dog kept in any kennel, if other than the person maintaining the kennel, shall be kept on file thereat and available to inspection * * *. Any holder of a license for a kennel in any town may remove his kennel to a location in any other...