Paquette v. City of Fall River

• Decision Date: 15 January 1959
• Citation: 155 N.E.2d 775,338 Mass. 368
• Parties: Alcide G. PAQUETTE et al. v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 775

155 N.E.2d 775

338 Mass. 368

Alcide G. PAQUETTE et al. v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 3, 1958.

Decided Jan. 15, 1959.

David Entin, Corp. Counsel, John T. Farrell, Jr., Asst. Corp. Counsel, Fall River, for defendant.

H. William Radovsky, Fall River, for plaintiffs.

Benjamin Horvitz, Fall River, by leave of court submitted a brief as amicus curiae.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The plaintiffs, owners of 'cold water flats,' bring this bill under G.L. c. 231A for a declaration as to the validity of 'Housing Ordinance of the City of Fall River' enacted on October 13, 1955 (c. 28 of Revised Ordinances, 1948), pursuant to G.L. c. 143, § 3 (as amended through St.1951, c. 85). The case was referred to a master, who filed a report which was confirmed. The judge ruled that 'the ordinance, as enacted, is arbitrary, unreasonable and unconstitutional,' and reported the case upon the pleadings, the master's report, the judge's 'findings and rulings of law,' such decree to be entered as justice and equity may require.

The master found these facts. 'Cold water flats' constitute about twenty-five per cent of the housing accommodations of the defendant city and 'usually comprise a kitchen (about fourteen feet by twelve feet), two bedrooms (each about seven feet by ten feet), a pantry and a toilet, with plumbing for only cold water in sink and toilet, and with one electrical fixture in the center of the ceiling of each room, without window screens or door screens furnished by the owner, and normally accommodating a family of three or four persons. * * * The piping installation is the usual one provided in Fall River and there is sufficient water in every flat for the purpose of drinking, washing utensils and clothes, and washing the body of the tenant or occupant. Hot water is available for any tenant who wishes to rent from the Fall River Gas Company a hot water tank which is set up in the cellar and operated by gas, for a rental of $1.99 a month.'

The plaintiffs are residents of Fall River who now own, and have owned for at least fifteen years, many buildings containing 'cold water flats.' These do not comply in numerous respects with the ordinance, which applies to every dwelling in the city. The sections of the ordinance, the validity of which is challenged, include the following.

Sections 3(a) and 3(b) relating to inspection of dwellings. Sections 5(a) and 7(c) requiring the installation of facilities for hot water. Section 5(b) requiring the installation of lavatory basins and bathtubs or showers. Section 7(a) requiring the installation of room heating facilities. Sections 8(a) and 8(d) requiring the installation of window and door screens and specific window area, and § 12(a) 2 requiring owners and occupants to maintain door and window screens unless the rental agreement provides otherwise. Section 9(a) requiring two separate electrical outlets for illumination for every habitable room. Sections 10(a) 2, 10(a) 4, 10(g), and 10(i) requiring water closet and bathroom floors to be made of terrazzo, tile, concrete, linoleum, or similar material; requiring floors, plaster, and paint to be in a certain condition; and requiring railings or parapets on roofs. Section 11(a) requiring every dwelling unit to contain at least 150 square feet of floor space for the first occupant and at least 100 additional square feet for each additional occupant. Section 11(b) requiring that in every dwelling unit of two or more rooms every sleeping room shall contain at least 70 square feet of floor space for one occupant and an additional 50 square feet for each additional occupant. Section 11(f) requiring access to every living room and bedroom and to at least one water closet compartment without passing through a bedroom, bathroom, or water closet compartment.

We summarize other findings of the master. As a result of the ordinance, the market value of the buildings containing the flats has depreciated thirty to forty per cent because of the expenditures necessary to comply with the requirements as to hot water and baths or showers. The regulations of the State department of public health establishing minimum standards for housing have not been accepted by Fall River, and the board of health of the city has not adopted such standards. See G.L. c. 111, §§ 128B-128F, as amended through St.1954, c. 447, § 2. The preliminary study of the ordinance was made by a group composed of employees of the fire, police, and public buildings departments, the planning board, and other representative citizens. 'The ordinance is based upon and in large measure is identical with the Minimum Standards of Fitness for Human Habitation as adopted by the Massachusetts department of public health.' The requirements of §§ 5(a), 5(b), 5(c), 7(a), 7(c), 8(d), 10(a) 2 and 4, 10(g), 10(i), and 12(a) 2 are of 'appreciable benefit to health.' The requirement of § 9 is 'an appreciable aid to safety.' The requirements of §§ 11(a) and 11(b) are 'of appreciable benefit to health and safety.' The requirements of § 11(f) are 'of appreciable benefit to the morals of the occupants.' 'If it is within my power as master to make a finding that the ordinance is a reasonable exercise of the police power of the city of Fall River for the prevention of fire, and the preservation of life, health and morals, I do so find.'

The judge in 'findings and order for decree' repeated many of the master's findings and briefly described the sections of the ordinance which were challenged. He also stated the following. 'The ordinance is of general application, without any exemption clause. It applies with equal force to all dwellings, whether the latter are of relatively modern origin, architecturally acceptable and structurally sound; or, on the other hand, whether the buildings are old and in a state of deterioration. The ordinance is penal and provides cumulative penalties for successive days when there is a failure of compliance with its detailed specifications. It vests in the superintendent of public buildings the power of enforcing its provisions, leaving to his judgment what is deemed by him to be a violation with no right of review of his decision by any appellate authority. Literally construed, as applicable to all buildings, it would affect the * * * [plaintiffs] whose property in most instances, if not all, had been in existence for many years prior to the enactment of the ordinance.' The judge also referred to a brief submitted by the city in which it was stated, 'No claim is made by the city that the operation of 'cold water flats' is an offensive trade,' and drew 'an inference that the 'flats' were neither nuisances, fire hazards, or health menaces.'

The rule to the master was in the usual form 'to hear the parties, find the facts, and report his findings to the court, together with such questions of law, arising in the course of his duty, as any party may request.' As the master's conclusion was not based solely on his subsidiary findings, the trial judge and we are bound by it 'unless the subsidiary findings included in the report are sufficient in themselves to demonstrate that the conclusion must be unsound in law.' Kasper v. H. P. Hood & Sons, Inc., 291 Mass. 24, 25, 196 N.E. 149; Dodge v. Anna Jaques Hospital, 301 Mass. 431, 435, 17 N.E.2d 308;' Shoer v. Daffe, 337 Mass. ----, 149 N.E.2d 625.

The summaries of the evidence introduced by the plaintiffs and by the defendant are not the subject of any question of law now material. They are not findings and must be disregarded. Fay v. Corbett, 233 Mass. 403, 409, 124 N.E. 73; Kilkus v. Shakman, 254 Mass. 274, 277, 150 N.E. 186; Wood v. Baldwin, 259 Mass. 499, 508-509, 156 N.E. 846.

The judge was not justified in inferring from the concession made by the city, in effect that it did not contend that the operation of 'cold water flats' is an offensive trade, that the flats are not a nuisance, fire hazard, or health menace. We must disregard that inference.

There was error in the ruling that the ordinance vests in the superintendent of public buildings the power of enforcement 'with no right of review of his decision by any appellate authority.' This statement overlooks § 4 of the ordinance entitled 'Board of Appeal.' Section 4(a) designates the planning board to act as a board of appeal to hear appeals from decisions of the superintendent of public buildings. Section 4(b) reads: 'Any person aggrieved by the refusal of the superintendent of public buildings to issue a permit on account of the provisions of this chapter, or by the issuance of a permit, or by any decision, ruling, or order of the superintendent of public buildings, may appeal to the board of appeal within fifteen days from the date of the action appealed from, by giving notice in writing to the superintendent of public buildings and to the board of appeal. After notice given to such persons as the board of appeal shall order, a hearing shall be held, and the board of appeal shall affirm, annul, or modify such refusal, decision, ruling, or order of the superintendent of public buildings.' Section 4(c) reads in part, 'The board of appeal may vary the application of this chapter in specific cases in which enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of this chapter but not...