Storer v. Downey

• Decision Date: 18 June 1913
• Citation: 215 Mass. 273,102 N.E. 321
• Parties: STORER v. DOWNEY, Superintendent of Public Buildings.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 273

102 N.E. 321

STORER v. DOWNEY, Superintendent of Public Buildings.

Supreme Judicial Court of Massachusetts, Suffolk.

June 18, 1913

COUNSEL

Francis J. Carney and Chas. E. Lawrence, both of Boston, for petitioner.

Jas. F Aylward, of Boston, for respondent.

OPINION

RUGG C.J.

This is a petition for a writ of mandamus by a landowner against the superintendent of public buildings of Cambridge. An ordinance of the city of Cambridge (passed under the authority of R. L c. 104, § 1) provides that 'no building shall be erected for or converted to use as a garage unless such use is previously authorized by the board of aldermen.' This is a valid exercise of the police power. The disagreeable incidents of a garage are well known. They have been adverted to frequently in recent decisions of this court. See, for example, Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 223, 95 N.E. 216, 34 L. R. A. (N. S.) 730, Ann Cas. 1912B, 450; Noyes v. Cushing, 209 Mass. 123, 126, 95 N.E. 83, and cases cited. Oil and gasoline, almost inevitably stored and used in them, are so highly inflammable and explosive that they may increase the danger of fire, no matter how carefully the building be constructed nor how noncombustible its materials. Although lawful and necessary buildings, they are of such character that regulation of the place of their erection and use is well within settled principles as to the police power. The ordinance in its terms differs in no essential particular from many others which have been sustained. Salem v. Maynes, 123 Mass. 372; Com. v. Hubley, 172 Mass. 58, 51 N.E. 448, 42 L. R. A. 403, 70 Am. St. Rep. 242; Newton v. Joyce, 166 Mass. 83, 44 N.E. 116, 55 Am. St. Rep. 385; Worcester Board of Health v. Tupper, 210 Mass. 378, 96 N.E. 1096. The case is plainly distinguishable from Com. v. Maletsky, 203 Mass. 241, 89 N.E. 245, 24 L. R. A. (N. S.) 1168, and Goldstein v. Conner, 212 Mass. 57, 98 N.E. 701, and the cases collected in each of these opinions, where either an innocuous matter has been made utterly dependent upon the action of a public board or a possibly harmful business upon that of a subordinate officer, or the ordinance has been broader than the statute authorized. Here the public board itself is empowered to deal with a subject which may endanger the safety of persons and property, and the ordinance does not exceed the scope of the statute.

The petitioner duly presented a petition to the board of aldermen which passed an order granting him authority to erect the garage. The mayor vetoed the order, giving as his reason 'not because it appears to be necessary * * * for the prevention of fire and the preservation of...