Real Props., Inc. v. Bd. of Appeal of Boston

• Decision Date: 25 May 1942
• Citation: 311 Mass. 430,42 N.E.2d 499
• Parties: REAL PROPERTIES, Inc., v. BOARD OF APPEAL OF BOSTON (and three other cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 430

42 N.E.2d 499

REAL PROPERTIES, Inc.,

v.BOARD OF APPEAL OF BOSTON (and three other cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1942.

Exceptions from Supreme Judicial Court, Suffolk County.

Certiorari proceedings by Real Properties, Inc., and by the Brockton Savings Bank and by Julius Kalman and others, and by Price & Nisson, Inc., against the Board of Appeal of Boston, to quash the proceedings of such board in granting a single decision varying the application of the zoning law in Boston. The single justice in each case ruled that the decision of the Board of Appeals was not the unanimous decision of the entire membership of the board as required by St.1924, c. 488, § 19, as amended by St.1926, c. 350, § 1, and the petitioners bring exceptions.

Exceptions sustained.

Before FIELD, C. J., and DONAHUE, DOLAN, and COX, JJ.

M. J. Zieman, of Boston, for petitioner Real Properties, Inc., and others.

H. Sesnovich, of Boston, for petitioner Price & Nisson, Inc.

R. H. Hopkins, Asst. Corp. Counsel, of Boston, for respondents.

FIELD, Chief Justice.

This matter comes before us on a consolidated bill of exceptions of the members of the board of appeal of the city of Boston constituted by the building law of said city (St.1907, c. 550, as amended), which by the zoning law of said city (St.1924, c. 488, as amended) is authorized to act as a board of appeal under the zoning law. St.1924, c. 488, § 19, in the amended form set out in St.1926, c. 350, § 1. The bill of exceptions relates to four petitions for certiorari (see G.L. (Ter.Ed.) c. 249, § 4; St.1924, c. 488, § 19), brought in the Supreme Judicial Court against said members of the board of appeal, for the purpose of quashing the proceedings of said board in granting a single decision varying the application of the zoning law at premises 77-91 Washington Street in Boston. In each of these four cases the respondents filed a return to the petition purporting to set forth the entirerecord. These returns were substantially identical in all four cases.

The cases were heard by a single justice of this court in the petitions and the returns of the respondents. As appears from the bill of exceptions, the single justice in each case ‘ruled that the decision of the board of appeal as shown in the return was not ‘the unanimous decision of the entire membership of the board,’ as expressly required by St.1924, c. 488, § 19, and the respondents duly took an exception to this ruling. This ruling was the sole ground upon which the single justice based the order that the writs of certiorari issue to quash the record of the board, and the respondents also duly claimed exceptions to the respective orders in each of the four cases.' The single justice stated: ‘Any exercise by the court of the discretion against granting the writ for this cause would seem to me contrary to the declared legislative policy.’

Facts material to the ruling disclosed by the returns of the respondents, which must be taken as true (Byfield v. City of Newton, 247 Mass. 46, 53, 141 N.E. 658; Hough v. Contributory Retirement Appeal Board, 308 Mass. 534, 535, 36 N.E.2d 415), are as follows: F. I. Sher Co. applied to the building commissioner of the city of Boston for a permit for the use of the premises 77-91 Washington Street. The application was refused on the ground that it would be in violation of §§ 4 and 13 of St.1924, c. 488, as amended. Thereupon said F. I. Sher Co. petitioned the board of appeal to vary the application of the zoning law, St.1924, c. 488, so as to permit the use of the premises for the uses for which the application to the building commissioner had been refused. The board, with four of the five appointed members thereof sitting and a substitute sitting in place of an absent appointed member, voted ‘unanimously’ to ‘vary the application of the Zoning Act (Sections 4 and 13) in this specific case and to annul the refusal of the Building Commissioner as set forth in full in decision on file,’ with a certain proviso described in the vote.

The question of law raised by the exceptions to the ruling of the single justice is whether the action of the board of appeal in varying the application of §§ 4 and 13 of St.1924, c. 488, as amended, was without statutory authority on the ground that such action was not ‘the unanimous decision of the entire membership of the board’ as required by § 19 of the zoning law, St.1924, c. 488. The answer to the question depends upon the proper construction of the governing statute.

The board of appeal that by the governing statute (St.1924, c. 488, § 19, as amended by St.1926, c. 350, § 1, a part of the zoning law of the city of Boston) is given jurisdiction to ‘vary the application of this act in specific cases' is the ‘board of appeal provided for in paragraph one of section six of the’ building law of the city of Boston, St.1907, c. 550, § 6, as amended by St.1910, c. 631, § 1, set out in full in a footnote.¹ Said ‘paragraph one’ provides: ‘There shall be in said department [the building department of the city of Boston] a board to be called the board of appeal. Said board shall consist of five members appointed by the mayor in the following manner: [Here follows provision for nominations of candidates for four positions on the board by various organizations and appointment by the mayor, for the appointment of one member by the mayor without such nomination and for confirmation of appointments by what is now the city council, for original appointments for varying terms and then for the term of five years, for the filling of vacancies in the same manner, and for compensation.] No member shall act in any case in which he is interested, and in case any member is so disqualified, or is absent from illness or other cause, the remaining members shall designate a substitute.’ And the third paragraph of said § 6 provides: ‘Every decision of the board shall be in writing and shall require the assent of at least three members.’

1. It is provided by G.L. (Ter.Ed.) c. 4, § 6, that in construing statutes, unless a construction would thereby be involved ‘inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute, * * * Fifth, Words purporting to give a joint authority to, or to direct any act by, three or more public officers or other persons shall be construed as giving such authority to, or directing such act by, a majority of such officers or persons.’ This means that such officers or persons ‘should act jointly, and that all should have an opportunity to participate in their action,’ at least in the absence of extraordinary circumstances (Damon v. Selectmen of Framingham, 195 Mass. 72, 78, 79, 80 N.E. 644, 645;Pettengell v. Alcoholic Beverages Control Commission, 295 Mass. 473, 477, 4 N.E.2d 324), but when all have had such an opportunity the officers or persons may act by majority. Williams v. Inhabitants of School District No. I in Lunenburg, 21 Pick. 75, 82,32 Am.Dec. 243;Reynolds v. Inhabitants of New Salem, 6 Metc. 340, 343;Inhabitants of Plymouth v. Plymouth County Commissioners, 16 Gray 341, 343; Mayor & Aldermen of Worcester v. Board of Railroad Commissioners, 113 Mass. 161, 174;Damon v. Selectmen of Framingham, 195 Mass. 72, 78, 80 N.E. 644;Cooke v. Inhabitants of Scituate, 201 Mass. 107, 87 N.E. 207,16 Ann.Cas. 421.Furthermore, in Sargent v. Webster, 13 Metc. 497, 504,46 Am.Dec. 743, where the court had under consideration action by a board of directors of a corporation, it was said that in ‘ordinary cases, when there is no other express provision, a majority of the whole number of an aggregate body, who may act together, constitute a quorum, and a majority of those present decide any question upon which they can act.’ And in the case of Codman v. Crocker, 203 Mass. 146, 154, 89 N.E. 177, 180, 25 L.R.A.,N.S., 980, involving action of the Boston transit commission, a board consisting of five members, where the bill of complaint alleged that only three of the members were present at the time the action in question was taken and only two of them voted in favor of such action, the court said: ‘Such a board may act by a majority of its members, if all have had notice and an opportunity to act, and the determination of a majority of a quorum under such circumstances is binding.’ Moreover, it was said by the court, in Merrill v. City of Lowell, 236 Mass. 463, 467, 128 N.E. 862, 863, that in ‘the absence of statutory restriction the general rule is that a majority of a council or board is a quorum and a majority of the quorum can act.’ See, also, Damon v. Inhabitants of Granby, 2 Pick. 345, 353;Day v. Green, 4 Cush. 433, 439. To what extent the principle that a majority of a quorum consisting of only a majority of a board may act is applicable to cases within the scope of G.L. (Ter.Ed.) c. 4, § 6, Fifth, need not be considered, since in the present case the subject is covered by specific statutory provisions. But the state of the law, common and statutory, relating to the subject generally, furnishes a background for construing these specific statutory provisions.

2. Statute 1907, c. 550, § 6, as amended by St.1910, c. 631, § 1, provides for a board of appeal of five persons. The obvious purpose of other provisions of this section is to preclude the application of the principle that a ‘majority of a * * * board is a quorum and a majority of the quorum can act.’ The mandatory statutory requirement that every ‘decision of the board * * * shall require the assent of at least three members' precludes decision by a majority of a quorum that consists of less than five members. This requirement, however, of itself, does not fix the quorum of the board for the purpose of making decisions at more than three members, the ordinary quorum of a board of five members. But the further provision of the section, ‘No member shall act in any case in which he is interested, and in case any...