Whitcomb v. Vigeant

134 N.E. 241, 240 Mass. 359, 19 A.L.R. 1439, 1922 Mass. LEXIS 766

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1922
• Status: Published

Opinion

Rugg, C. J.

Various householders seek by this suit in equity to enjoin the defendants, one of whom is mayor of Leominster and the other of whom is a resident of that city intending to erect and complete in the vicinity of the homes of the several plaintiffs a public dance hall of an open type for continual use during summer seasons. There are allegations of purpose by the defendant Vigeant, immediately upon the completion of the building, to apply to the mayor for a license to conduct a public dance hall, that the mayor is vested by law with authority to grant such license, that he will grant such license without hearing the plaintiffs, that the proposed location is wholly unfit for a public dance hall, and that the operation as a dance hall would be a great detriment to the residential character of the neighborhood where the plaintiffs reside, would seriously damage their property, and would constitute a nuisance. Separate demurrers were filed by each defendant, which were sustained. The plaintiffs’ appeal from a decree dismissing the bill brings the case before us.

There is no allegation in the bill that the law requires the mayor to hold a public hearing before granting a license for a public dance hall. No such hearing is required by G. L. c. 140, § 181.

There is no allegation that the mere erection of a building susceptible of use as a dance hall would be a nuisance. The gravamen of the bill is that the use of a building for that purpose in the designated locality would be a nuisance. It is provided however, by G. L. c. 140, § 181, that public amusements may be licensed by the mayor. This section is broad enough in its scope to include public dances and dance halls. If the hall is not licensed, it cannot be used, and therefore no nuisance can arise. Cook v. Fall River, 239 Mass. 90. If the hall is licensed and public dances are authorized, there can be no nuisance because the statute in effect confers upon the mayor jurisdiction to determine finally whether the use of the property in accordance with the license would be a nuisance, and such use would not subject the owner to injunction or indictment.

General allegations of nuisance are taken at their face value on demurrer, but they must be read in conjunction with the specific averments and are limited by the definite facts set forth. They must be all considered in the light of controlling provisions of the statute. No facts are stated in the bill which would warrant the issuance of an injunction against a public officer like the mayor from exercising the discretion and the power vested in him by law as to granting a license. No facts are disclosed which warrant the interposition of a court of equity against the other defendant because, if he procures a license as is averred to be likely, then such license will completely protect him, provided that he conforms to its conditions.

The case is in principle within the authority of numerous decisions. Sawyer v. Davis, 136 Mass. 239. Call v. Allen, 1 Allen, 137. Alter v. Dodge, 140 Mass. 594. White v. Kenney, 157 Mass. 12. Murtha v. Lovewell, 166 Mass. 391. Levin v. Goodwin, 191 Mass. 341. Cook v. Fall River, 239 Mass. 90.

Decree dismissing hill affirmed with costs.