Town of North Reading v. Drinkwater

• Decision Date: 28 May 1941
• Citation: 34 N.E.2d 631,309 Mass. 200
• Parties: TOWN OF NORTH READING v. DRINKWATER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 200

34 N.E.2d 631

TOWN OF NORTH READING

v.DRINKWATER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 28, 1941.

Report from Superior Court, Middlesex County; Hurley, Judge.

Action by the Town of North Reading against Laura Drinkwater and another, to enjoin the defendants from making further use of certain premises for allegedly unlawful purposes, which involved the validity of a by-law of the plaintiff town. On reservation and report by a judge of the superior court on a case stated.

Decree ordered to be entered dismissing the bill.

Argued before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

C. V. Statuti, of Boston, for plaintiff.

J. W. Killam, Jr., of Melrose, for defendants.

COX, Justice.

The suit comes before this court on reservation and report by a judge of the Superior Court upon a case stated. G.L.(Ter.Ed.) c. 214, § 31. There was no final decree, no ruling as to the form the decree should take, and no statement of any terms of reservation. See Thompson v. Barry. 184 Mass. 429, 431, 68 N.E. 674;Hildreth v. Thibodeau, 186 Mass. 83, 85, 71 N.E. 111,104 Am.St.Rep. 560;Daly v. Foss, 209 Mass. 470, 473, 474, 95 N.E. 899.

The question is presented whether a by-law of the plaintiff town is valid. All formalities required for its adoption were complied with. Both parties concede that it was adopted under the provisions of G.L.(Ter.Ed.) c. 40, § 21, which, so far as material, reads as follows: ‘Towns may, for the purposes hereinafter named, make such orders and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits. * * * (1) For directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.’ The by-law is as follows: ‘The removal for sale of loam, sand, gravel or quarried stone, bordering on or within 250 feet of a street line shall not be permitted except by permit from the Board of Appeals. No loam to be removed for sale for more than one-half of its depth in any part of the Town, except when incidental to, and in connection with the construction of a building, for which a permit has been issued.’ The defendant Laura Drinkwater has title to and control of the premises in question, to which the plaintiff seeks to apply said by-law, and the other defendant, her husband, is engaged in the contracting business. The defendants have been removing loam and sand from the premises since November, 1935, and intend to continue this removal for purposes of sale. A portion of the premises is within two hundred fifty feet of street lines. They also intend to remove for sale loam, to an extent of more than one half its depth, from a portion of the premises and in the rear of a point two hundred fifty feet from street lines. The prayers of the bill are, in substance, that the defendants, and their agents, be enjoined from making any further use of the premises in question ‘for the unlawful purposes' described in the bill.

It is true that under appropriate circumstances a variety of by-laws may be adopted in the interests of public health, safety and morals, Opinion of the Justices, 234 Mass. 597, 602, 608-610, 127 N.E. 525, but when they go beyond the authority conferred by the enabling statute, they are invalid. Cawley v. Northern Waste Co., 239 Mass. 540, 544, 132 N.E. 365, and cases cited. See Commonwealth v. Stodder, 2 Cush. 562, 569,48 Am.Dec. 679. In Willard v. Newburyport, 12 Pick. 227, one question was what were the ‘prudential concerns' of a town, and Chief Justice Shaw said, 12 Pick. at page 231, that ‘perhaps no better approximation to an exact description can be made, than to say that it embraces that large class of miscellaneous subjects affecting the accommodation and convenience of the inhabitants, which have been placed under the municipal jurisdiction of towns, by statute or by usage.’ In Commonwealth v. Turner, 1 Cush. 493, the defendant was complained of for selling strong beer contrary to a town by-law that imposed a penalty upon anyone who should make a sale in the manner alleged. The by-law in question purportedly was made under the authority of the statute that was held to be substantially the same as that part of the statute here involved. It was contended that it was the intention of the Legislature to confer on towns a power of legislation, limited only by their judgment of what the peace, good order and internal police might render expedient. But it was said that this power would extend, under such a construction, to every department of criminal law affecting the public peace, and that, if it were clear from the language used that the Legislature intended thus to delegate their whole power of legislation on the subject of criminal law to towns, it would be a grave question whether such an act would be within their constitutional authority. It was held that such was not the intent of the Legislature, and it was pointed out that another consideration, quite decisive to show that the Legislature did not intend to give the unlimited power contended for, was that they used the term ‘by-law’ and gave the power to make ‘by-laws'; that this term has a peculiar and limited signification, being used to designate the orders and regulations, which a corporation, as one of its legal incidents, has power to make, and which is usually exercised to regulate its own actions and concerns, and the rights and duties of its own...