Town of Milton v. Attorney General
| Decision Date | 06 June 1977 |
| Citation | 372 Mass. 694,363 N.E.2d 679 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert D. O'Leary, Town Counsel, Boston, for the Town of milton.
Steven A. Rusconi, Asst. Atty. Gen., for the Attorney General.
Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.
The 1976 annual town meeting in Milton (town) voted to add to the town by-laws a new § 36, 1 restricting the pumping of gasoline at retail filling stations to attendants employed by the station. The Attorney General disapproved the by-law because it would prohibit self-service gas stations, contrary to Rule 43 of the Rules and Regulations (Form FPR--4) filed by the Board of Fire Prevention Regulations (board) on May 1, 1975, 2 permitting self-service automated gasoline dispensing systems. We hold that under G.L. c. 148, § 9, the town could make and enforce by-laws 'not inconsistent' with Form FPR--4, that the by-law in question is not inconsistent with Rule 43, and that the Attorney General erred in disapproving the by-law under G.L. c. 40, § 32. See Reading v. Attorney Gen., 362 Mass. 266, 268--271, 285 N.E.2d 429 (1972).
The complaint was filed in the Supreme Judicial Court for the county of Suffolk on August 30, 1976, and the case was reported to the full court by a single justice on the complaint and answer, Form FPR--4, and the parties' motions for summary judgment. Under G.L. c. 148, § 9, as amended through St.1975, c. 764, the board is to 'make rules and regulations for the keeping, storage, use, . . . (and) sale . . . of . . . crude petroleum or any of its products . . .'. Cities and towns may also make and enforce ordinances and by-laws, not inconsistent with said rules and regulations, relative to the subject-matter of this section. Each city or town shall submit a copy of each such ordinance or by-law to the board within ten days after the passage thereof . . ..'
Form FPR--4 was promulgated under that authority. The plaintiff hints in argument that the rule may be unreasonable and invalid, but no such issue is fairly raised. Nor is any point made as to the submission of a copy of the by-law to the board. We think the standard for determining inconsistency between the by-law and the rule is the same as that for determining inconsistency between a by-law and a statute. John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., --- Mass. ---, --- - --- a, 339 N.E.2d 709 (1975). New England LNG Co. v. Fall River, --- Mass. ---, --- - --- b, 331 N.E.2d 536 (1975).
Rule 43 provides that self-service gas stations 'shall be permitted' on stated conditions. The by-law in issue forbids self-service at gas stations. Superficially, therefore, the by-law forbids what Rule 43 permits, and is inconsistent with Rule 43. See Boston Police Patrolmen's Ass'n v. Boston, --- Mass. ---, --- c, 326 N.E.2d 314 (1975). The Attorney General concedes, however, that Rule 43 does not sweep so broadly as the literal meaning of its words. He concedes, for example, that a zoning by-law could exclude self-service gas stations in a particular zone or throughout the town. The authorizing statute by its terms makes it clear that it does not so broadly encompass the field of fire prevention as to indicate a clear intention to preempt the matter as an area of complete State concern. Revere v. Aucella, --- Mass. ---, --- d, 338 N.E.2d 816 (1975) appeal dismissed sub nom. Charger Invs. Inc. v. Corbett, 429 U.S. 877, 97 S.Ct. 225, 50 L.Ed.2d 159 (1976). Nor is Form FPR--4, read as a whole, so broadly encompassing.
We must therefore fall back on the general standard for determining inconsistency laid down in Bloom v. Worcester, 363 Mass. 136, 156, 293 N.E.2d 268, 280 (1973): whether 'the State legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject.' In the opinion of a majority of the court, the State purpose here is to assure the safety of self-service gas stations, if there are any, rather than to encourage the opening of such stations. The by-law in no way derogates from safety. It follows that it is 'not inconsistent' with...
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