Commonwealth v. Maletsky

89 N.E. 245, 203 Mass. 241, 1909 Mass. LEXIS 921

• Court: Massachusetts Supreme Judicial Court
• Decided: September 23, 1909
• Status: Published

Opinion

Sheldon, J.

The first sentence of c. 30, § 64, of the City Ordinances of Chelsea reads as follows: “No person shall use, occupy or maintain any building for the purpose of picking, sorting or storage of rags therein, without a permit in writing from the chief of the fire department.” The fundamental question now presented is whether this prohibition can be enforced as a valid exercise of the police power. And the question really is whether the prohibition can be upheld under the provisions of R. L. c. 104, § 1, that “Every city, except Boston, and every town which accepts the provisions of this section or has accepted the corresponding provisions of earlier laws may, for the prevention of fire and the preservation of life, by ordinances or by-laws not inconsistent with law and applicable throughout the whole or any defined part of its territory, regulate the inspection, materials, construction, alteration and use of buildings and other structures within its limits, except such as are owned or occupied by the United States or by the Commonwealth and except bridges, quays and wharves, and may prescribe penalties not exceeding one hundred dollars for each violation of such ordinances or by-laws.” This ordinance cannot be sustained under the authority given by R. L. c. 25, § 23, or by St. 1902, c. 187, for the reason that the penalty authorized by these statutes is limited to $20, while the penalty for the violation of any of the provisions of the chapter before us is a fine of not less than $20 nor more than $100. And this ordinance appears to have been intended wholly to guard against the danger of fire. Accordingly it cannot be sustained on the ground of Commonwealth v. Hubley, 172 Mass. 58.

We assume that it was within the power of the municipal authorities to decide that rags were more inflammable than many other articles, and that the business of picking, sorting, or storing them involved peculiar danger of fire, and therefore that ordi-' nonces properly might be passed to regulate the materials and construction of buildings used for that business and to provide for the inspection and fix the mode of use of such buildings. This is within the principle of many decisions. Salem v. Maynes, 123 Mass. 372. Train v. Boston Disinfecting Co. 144 Mass. 523, stated in Commonwealth v. Sisson, 189 Mass. 247, 253. Commonwealth v. Parks, 155 Mass. 531. Newton v. Joyce, 166 Mass. 83. Clark v. South Bend, 85 Ind. 276. Green v. Lake, 60 Miss. 451. In re Hang Kie, 69 Cal. 149. McCloskey v. Kreling, 76 Cal. 511. Barbier v. Connolly, 113 U. S. 27. Soon Hing v. Crowley, 113 U. S. 703. Similar doctrines have been affirmed in other cases. Commonwealth v. Plaisted, 148 Mass. 375. Commonwealth v. Mulhall, 162 Mass. 496. Commonwealth v. Packard, 185 Mass. 64, 65. Austin v. Tennessee, 179 U. S. 343. The mere fact that one effect of such regulations will be to exclude some individuals from certain occupations, or to prevent them from using their property in some advantageous manner which otherwise would not be unlawful, will not make the regulations invalid. Commonwealth v. Sisson, 189 Mass. 247. Commonwealth v. Hubley, 172 Mass. 58. Slaughter House Cases, 16 Wall. 36. Mugler v. Kansas, 123 U. S. 623. Powell v. Pennsylvania, 127 U. S. 678. But §§ 9 and 67 of the ordinance before us, the validity of which sections is not brought in question, have provided for the materials and construction of buildings to be used for this business. Can the city of Chelsea ■also forbid any one from using for this purpose a building constructed in exact conformity with its requirements unless he shall also have procured a written permit to do so from the chief of its fire department ? The effect of this additional requirement is to leave it wholly to the will of that officer whether or not any person shall be permitted to engage in this business. No rules are provided for the exercise of his judgment; there is no appeal from his determination to the city council or the board of control (St. 1908, c. 659), the department of the city government which was entrusted by the Legislature with the exercise of this power. Doubtless it is to be expected that a subordinate officer entrusted with such unlimited power will use it wisely and with a view only to the public good ; but, as in Winthrop v. New England Chocolate Co. 180 Mass. 464, 466, there is nothing in the ordinance to guide him in passing upon the applications that may be made to him. His action in revoking a permit once issued may be appealed from; but his refusal to issue any permit is final. It is left entirely to his untrammelled discretion whether the business of keeping or sorting rags shall be carried on at all in Chelsea, or whether, if carried on, it shall be confined to persons of one nationality or of one way of thinking in religion or politics. As in Newton v. Belger, 143 Mass. 598, 599, there are no regulations to guide the applicant for a permit as to what he must do or what qualifications he must show in order to entitle himself to a permit. Every person, however careful and however well qualified, is forbidden to use any building, although absolutely fireproof, for the storage of any rags, although quite incombustible, without a permit which no qualifications might enable him to obtain. Neither expressly nor by necessary implication is the chief of the fire department required to base his action in granting or refusing a permit upon the danger of fire involved. It has been held that when such unlimited power has been granted by the Legislature to certain designated municipal boards or officers, an ordinance by which they undertake to delegate this power absolutely to a subordinate officer will be merely void. Coffin v. Nantucket, 5 Cush. 269. Day v. Green, 4 Cush. 433. Lowell v. Simpson, 10 Allen, 88. Commonwealth v. Staples, 191 Mass. 384. Cicero Lumber Co. v. Cicero, 176 Ill. 9. Chicago v. Trotter, 136 Ill. 430. State Centre v. Barenstein, 66 Iowa, 249.

This is not a case where the city government has general control of the subject matter of the ordinance and may impose such conditions as it pleases, as in Commonwealth v. Ellis, 158 Mass. 555, Commonwealth v. Mulhall, 162 Mass. 496, and similar cases. The power of the city of Chelsea to deal with this subject is only what is given by R. L. c. 104, § 1; and the city authorities can in no respect transcend the authority thus given. Commonwealth v. Turner, 1 Cush. 493. State v. Schuchardt, 42 La. Ann. 49. We need not doubt the power of the Legislature to establish such regulations as this, or to delegate that power to city governments or, other boards if it desires to do so, and to make licenses or permits from an administrative officer necessary to the exercise of trades or kinds of business that might involve a public danger. Many cases to this effect have been already referred to. See also Commonwealth v. Page, 155 Mass. 227, 230; Commonwealth v. Abrahams, 156 Mass. 57, 60; Commonwealth v. Roswell, 173 Mass. 119; Attorney General v. Williams, 174 Mass. 476, 478; Brodbine v. Revere, 182 Mass. 598; Sprague v. Minon, 195 Mass. 581; Commonwealth v. Kingsbury, 199 Mass. 542. But as has been already pointed out, the effect of the enforcement of this ordinance by the chief of the fire department may be wholly to prohibit the carrying on of the specified business in Chelsea. It is practically for him and not for the board of control to make such rules and regulations to be observed by any to whom he may choose to give permits as he may think proper; and so far as he may make compliance with his regulations a condition precedent to the issue of a permit, his power is absolute. These are legislative functions. And as was said in Cooley on Constitutional Limitations, (7th ed.) 293, a “ very important limitation which rests upon municipal powers is that they shall be executed by the municipality itself, or by such" agencies or officers as the statute has pointed out. So far as the functions are legislative, they rest in the discretion and judgment of the municipal body entrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates or of any other authority.” State v. Paterson, 5 Vroom, 163, 168. Lyon v. Jerome, 26 Wend. 485. Brooklyn v. Nodine, 26 Hun, 512. East St. Louis v. Wehrung, 50 Ill. 28. Kinmundy v. Mahan, 72 Ill. 462. Ruggles v. Collier, 43 Mo. 353.

The general principle also has been affirmed that, at any rate in the absence of a clear expression of the legislative will, an ordinance which attempts to vest in a city council or a board of control or some administrative officer of the municipality the power, not subject to review by the courts or by other higher authority, to permit or refuse to permit the carrying on of a business lawful in itself and not prohibited by legislation, is not to be sustained. It was said by Brown, J., in Austin v. Tennessee, 179 U. S. 343: “Although it was held in Barbier v. Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S. 703, that a municipal ordinance prohibiting laundry work within certain territorial limits and within certain hours was purely a police regulation, such an ordinance was void, if it conferred upon the municipal authorities arbitrary power at their own will and without regard to discretion in the legal sense of the term, to give or withhold consent as to persons or places without regard to the competency of the persons applying, or the propriety of the place selected for carrying on business.” And see to the same effect Gundling v. Chicago, 177 U. S. 183; Plessy v. Ferguson, 163 U. S. 537, 550; Yick Wo v. Hopkins, 118 U. S. 356; Mayor & City Council of Baltimore v. Radecke, 49 Md. 217; Richmond v. Dudley, 129 Ind. 112; Moneyweight Scale Co. v. McBride, 199 Mass. 503, 514. The pursuit of a lawful business, not in itself harmful, though it may be regulated, is not, without legislative sanction, wholly to be stopped by municipal ordinances for the prevention of fire or for safeguard against some other apprehended danger. Belmont v. New England Brick Co. 190 Mass. 442. Commonwealth v. Rawson, 183 Mass. 491, 494. Belcher v. Farrar, 8 Allen, 325, 328. Austin v. Murray, 16 Pick. 121,126. Commissioners of Northern Liberties v. Northern Liberties Gas Co. 12 Penn. St. 318. Montgomery v. West, 9 L. R. A. (N. S.) 659, and note. And see Wineburgh Advertising Co. v. Murphy, 195 N. Y. 126.

Accordingly, in our opinion, that part of c. 30, § 64, of the City Ordinances of Chelsea which forbids the use of any building for the picking, sorting or storage of rags without a permit in writing from the chief of the fire department is invalid and void; and the first and second instructions requested by the defendant should have been given. This conclusion makes it unneeessary to consider whether the evidence offered by the defendant should have been admitted, either to the court or to the jury.

In accordance with the terms of the report a verdict of not guilty must be entered.

So ordered.