Mile Road Corp. v. City of Boston
| Decision Date | 04 February 1963 |
| Citation | 187 N.E.2d 826,345 Mass. 379 |
| Parties | MILE ROAD CORP. v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Maurice Caro, Boston (Edward M. Dangel & Leo E. Sherry, Boston, with him), for plaintiff.
William H. Kerr, Boston, for defendant.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, SPIEGEL, and REARDON, JJ.
This bill under G.L. c. 231A seeking a binding declaration as to the constitutionality of St.1962, c. 583, entitled, 'An Act prohibiting the dumping of refuse or trash in a certain section of the Dorchester district of the city of Boston,' is here on a report without decision by a judge of the Superior Court. The facts alleged in the bill and admitted in the answer are given, by stipulation, the effect of a case stated. Notice pursuant to G.L. c. 231A, § 8, was given to the Attorney General, who filed an affidavit of receipt of notice, but took no other action.
The statute in its entirety reads: 'The city of Boston is hereby authorized and directed to prohibit the dumping of trash or refuse on land located in the Dorchester district in the area commonly called the Calf pasture, Mile road and Columbia point, said land being east and west of Mount Vernon street and east of Morrissey boulevard.'
The plaintiff, under a deed dated March 1, 1962, duly recorded, is 'the owner of a large and valuable tract of vacant land (the locus) containing approximately 4,000,000 square feet' which is within the area described in the statute. Although the record is not precise in this respect, an inspection of exhibits reveals that the plaintiff's land, large as it is, is but a small part of the total area affected. No charge of spot zoning, therefore, can soundly be made, wholly apart from the inappropriateness of the phrase as applied to the Legislature. See Marblehead v. Rosenthal, 316 Mass. 124, 126, 55 N.E.2d 13.
For the purposes of the Boston Zoning Act, St.1924, c. 488, the locus is in an industrial district, but its use as a dumping ground is a nonconforming use until April 1, 1986. For many years before 1933 and at all times since, ordinances of the city have prescribed that 'No person shall place or keep any refuse or noxious or decaying liquid or solid matter, except house-offal, in any building or in any waters or on any land, except in accordance with a permit from the health commissioner'; and that 'No person shall deposit or dump any house-dirt, house-offal, or other refuse matter, except in a place approved by the health commissioner.' Beginning in 1933, the health commissioner has granted annual permits to dump refuse on the locus to the respective owners, including the plaintiff, all of whom, pursuant to such permits, have operated and maintained a private dump. The permit contains the statement, 'It is understood and agreed that this permit may be revoked or restricted at any time by the health commissioner and his decision in the matter shall be final.'
When the plaintiff acquired title, it became vested in fee with a parcel of land deemed, pursuant to St.1955, c. 310, § 2, to have been assigned as a dumping ground for garbage, rubbish, or other refuse, under G.L. c. 111, § 150A (inserted by St.1955, c. 310, § 1). Such assignment, apart from how it may have been affected by St.1962, c. 583, if constitutional, has not been rescinded, suspended, or modified except by a communication dated April 12, 1962, from the State Department of Public Health, which no one argues is presently material. The plaintiff has been issued a permit to make fires in the open air. St.1943, c. 355. The plaintiff has a large and substantial investment in the dump, and enforcement of St.1962, c. 583, will put the plaintiff out of business without compensation.
The existence and maintenance of local dumps is a public necessity for the inhabitants of each municipality. The enforcement of c. 583 will cause great hardship to the city as to its sanitation needs and demolition requirements in that there is no other area within the city which is available for dumping, 'a vital need at the present time because of the extensive demolition going on in the city limits.' These public considerations are without consequence in the case at bar. The issue is whether St.1962, c. 583, is unconstitutional as applied to the plaintiff. Massachusetts Comm. Against Discrimination v. Colangelo, Mass., 182 N.E.2d 595, 1 and cases cited.
'One assailing a statute on constitutional grounds has the burden of proving the absence of any conceivable grounds upon which the statute may be supported.' Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 305, 65 N.E.2d 529, 532; Commonwealth v. Chamberlain, 343 Mass. 49, 51-52, 175 N.E.2d 486. The decision as to what measures are necessary for the preservation of life, health, and morals is in the first place a matter for the Legislature, and every presumption must be made in favor of the validity of statutes enacted to further those objectives. Paquette v. Fall River, 338 Mass. 368, 376, 155 N.E.2d 775. 'If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature.' Druzik v. Board of Health of Haverhill, 324 Mass. 129, 139, 85 N.E.2d 232, 237; Hall-Omar Baking Co. v. Commissioner of Labor & Indus., Mass., 184 N.E.2d 344. 2
The question is not, as stated by the plaintiff, whether the record affirmatively shows that the legislative restriction bears a substantial relation to the public health, safety, morals, or general welfare. Nor is the absence of a preamble to St.1962, c. 583, of significance. See Milk Control Bd. v. Gosselin's Dairy, Inc., 301 Mass. 174, 179-180, 16 N.E.2d 641. On the other hand, we cannot accept an argument of the defendant that the statute must be construed as limited to 'waste material that is combustible or putrescible.' These words do not appear in any statute or case which the defendant cites. The details of the argument are that, as stated in Kenney v. Building Commr. of Melrose, 315 Mass. 291, 295, 52 N.E.2d 683, 685, 150 A.L.R. 490, 'A general term in a statute or ordinance takes meaning from the setting in which it is employed'; and that the statute, being in derogation of the common law, is to be strictly construed, citing Corcoran v. S. S. Kresgo Co.,...
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