Roman Catholic Archbishop of Boston v. Bd. of Appeal of Bldg. Dep't of Boston

• Decision Date: 12 September 1929
• Parties: ROMAN CATHOLIC ARCHBISHOP OF BOSTON v. BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON et al. LAX et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 416

167 N.E. 672

ROMAN CATHOLIC ARCHBISHOP OF BOSTON

v.BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON et al.

LAX et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 12, 1929.

Report from Supreme Judicial Court, Suffolk County; Sanderson, Judge.

Petitions for writs of certiorari, by the Roman Catholic Archbishop of Boston and by Nina Lax and others, to review proceedings of the Board of Appeal of the Building Department of the City of Boston and others, varying application of zoning law. On report. Writs issued.Frederick W. Mansfield and Edmund R. Mansfield, both of Boston, for petitioners.

Leo Schwartz, Asst. Corp. Counsel, of Boston, for respondents.

RUGG, C. J.

These are petitions for writs of certiorari. Their object is to review the proceedings of the respondent board in voting to vary the application of St. 1924, c. 488, as amended, being the zoning law of the city of Boston, in accordance with the petition of one Daley. His application for a permit to erect stores on land within a general residence district having been denied by the building commissioner on the ground that it would be in violation of St. 1924, c. 488, § 4, Daley appealed to the respondent board as provided in section 19 of said chapter. He petitioned the respondent board to vary the application of the zoning law so as to enable him to erect stores on the described land. The respondent board made an order that ‘Notice of the hearing’ on the appeal ‘shall be advertised * * * in a daily newspaper published in the city of Boston not less than six days previous to date set for public hearing. Date of public hearing on your appeal will be Monday, July 2, at 10:30 a. m.’ This order was dated June 26, 1928.

It appears from the return of the respondent board that the notice was advertised on June 27, 1928, in a Boston newspaper. That was not a compliance with the order. In calculating the required six days, the day of the hearing must be excluded, because the advertisement must be six days before that date. It was held in Bemis v. Leonard, 118 Mass. 502, 506,19 Am. Rep. 470, that ‘in computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises.’ Laine v. Aarnio (Mass.) 164 N. E. 238, and cases there cited.

Commonly in computing time limited to less than a week Sunday is excluded. Sunday is included in computation only where the time limited is of such length as necessarily to include one or more Sundays. Stevenson v. Donnelly, 221 Mass. 161, 163, 108 N. E. 926, Ann. Cas. 1917E, 932. That is the general rule. It is not necessary to determine whether that rule would be applicable to an order such as here is involved because in any event the order was not complied with.

The day on which the order in question was issued was Tuesday. The time limited was less than a week. The advertisement was not printed until Wednesday, June 27. That was only five days previous to the hearing, even if Sunday be counted. There was, therefore, no compliance with the order as to notice.

After the respondent board had specified the way in which notice must be given, it could acquire jurisdiction to deal with the merits of the appeal only after there had been compliance with that specified way. Wright v. Lyons, ...