White v. Kenney

• Decision Date: 23 June 1892
• Parties: WHITE et al. v. KENNEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 12

31 N.E. 654

WHITE et al. v. KENNEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1892

COUNSEL

R.M. Morse, Geo. R. Swasey, and Marcus Morton, for complainants.

M. & C.A. Williams, for respondents.

OPINION

KNOWLTON J.

The defendants have received from the board of health of the city of Boston a license to erect their stable, granted after a public hearing at which the petitioners were represented. The license was issued under the statute of 1891, c. 220, which provides in section 1 "that no person shall hereafter erect, occupy, or use any building in any city for a stable for more than four horses, unless first licensed so to do by the board of health of said city, and in such case only to the extent so licensed." Section 4 makes punishable violations of the act, and provides that courts "having equity jurisdiction may restrain any such erection, occupation, or use contrary to the provisions of this act." Under statutes somewhat similar it has been held that the act gives to the designated tribunal jurisdiction to determine finally whether the use of property in accordance with the terms of a proposed license would or would not make it a public or private nuisance, and that the use of the building in conformity with the license granted would not subject the owner to indictment or injunction. Call v. Allen, 1 Allen, 137; Com. v. Rumford Chemical Works, 16 Gray, 231, 233; Sawyer v Davis, 136 Mass. 239. See, also, Quinn v. Middlesex Electric Light Co., 140 Mass. 109, 3 N.E. 204; Same v. Lowell Electric Light Corp., 140 Mass. 106, 3 N.E 200; Alter v. Dodge, 140 Mass. 594, 5 N.E. 504. Whether this doctrine should be applied to the statute now before us to the full extent contended for by the respondents it is unnecessary, in the present case, to decide. The petitioners do not offer to show that they have suffered any injury, or that any nuisance has been created, but they wish to introduce evidence of what will be the natural and probable effect of the erection and use of the respondents' proposed building according to the terms of the license. We are of opinion that the statute gives the determination of this question to the board of health. This kind of question always arises when an application for a license to erect such a stable in a city is made, and if the board of health cannot finally determine it, their license when granted, is of no effect. If the building...