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464 NEW WINTHROP V. ENGLAND CHOCOLATE CO. [180
motion at his Decisions in as to when peril. reputation proved
connection with criminal no the a have charge upon bearing
at bar. case
A to witness was allowed some for cumulative evidence give
the a or the after of testi- plaintiff the whole defendant’s part
had been in. There to is show that the mony put nothing judge
did not exercise that he his well discre- or exceeded settled
339, Storti, Commonwealth v. 177 Mass. powers. 345. tionary
overruled. Exceptions
Winthrop England of vs. Inhabitants New Chocolate
Company others. & 
27, 2, February Suffolk. December 1901. 1902. 
Holmes, J., Knowlton, Morton, Lathrop, Hammond, Present: C. & JJ.
pub- Validity by-law. Jurisdiction, enjoin Municipal of a Corporations, Equity To
lic nuisance.
481, 11, 1894, authorizing adopted c. a has to St. town which that section make § " by-laws regulating buildings prevention preservation and for the of fire the of
” undertaking regulate by-law life does authorize a to trades. not offensive
“ following by-law shall, passed person : within A No one hundred feet of town the
land, person’s building any any building planing or or use other erect for a
establishment, hall, public manufacturing mill, wood-working any for hotel or or
business, obtaining permit writing without first a from or other hazardous in
selectmen, permit granted until and no such shall be after such notice to the
order, hearing property the shall adjoining of as selectmen and after a owners Held, void, by-law was pursuant to that this unreasonable and sucli notice.”
1894, by 481, permitting has §11, a town which not authorized St. c. and was ” “ preservation prevention the of life to adopted and that section for the of fire
buildings its within limits. by-laws regulating use of make and the construction ground - establishment on the equity, an cannot maintain a bill in to restrain A town
corporate showing in its ca- nuisance, the town public is a that that it without
pacity damage special has a nature. suffered of 
to restrain of equity Winthrop the inhabitants Bill in by
chocolate, and other cocoa the defendants from manufacturing
in Winthrop building like wooden factory at a certain products
the selectmen by of required without the the written permit
also, the town, to restrain the of of certain a provisions by-law

465 WINTHROP NEW ENGLAND CHOCOLATE CO. v. Mass.]
business, on for defendants the their that ground manufacturing
nuisance, 25,1901. forth, reasons set was a filed public January
The defendants demurred to bill and also an answer. the filed
the of that the causes it was demurrer Among by-law alleged,
relied was void as not authorized law of the Com- upon by any
law, monwealth and was to and that relief in equity, repugnant
if had a nuisance could be the of any, upon ground public only
in of the instituted the name General. by proceedings Attorney
The to have been was as follows: violated alleged by-law
shall, “No within one feet other hundred of person person’s any
land, mill, or or use a erect for building any building planing
establishment, hall, hotel or or for wood-working any public
business, or other hazardous without first obtain- manufacturing
a in selectmen, from the and no such ing permit writing permit
shall be until after such notice to owners of granted adjoining
as order, the selectmen shall and after a property pur- hearing
suant to such notice.”
1894, 481, 11, St. c. that a town which has provides, adopted §
“ that section for the of fire and the may prevention preservation
life, of ordinances or not to law by and by-laws repugnant ap-
the whole or plicable defined of its terri- throughout any part
materials, the construction, tory, alteration regulate inspection, ” and use and of other structures within with buildings its limits
certain named. exceptions
In the the Court demurrer was and Superior sustained the bill
costs; dismissed with and the plaintiff appealed.
Abbott, E. J. for the plaintiff.
J. for the E. defendants. Young, 
Hammond, J. The statute which the only upon plaintiff
relies for the to the in is authority pass St. by-law question
481, c. 1894, 11. that the town its of Assuming by acceptance §
this or section was statutes authorized to act under the preceding
section, is, the whether the is within question the author- by-law “ conferred. The is to for ity thereby authority pass by-laws
“ the life,” of fire and the of to prevention preservation regu-
materials, construction, late the alteration and use inspection,
of and The structures.” statute has to do buildings nothing
with the trades, of offensive but its clear is regulation purport
confer the to to the named therein regulate authority things 
180. VOL. 30

V. 466 WINTHROP NEW ENGLAND CHOCOLATE CO. [180
so far as be to fire and may only reasonably necessary prevent
life. preserve
this of it we to the of the With view examination by- proceed
“ shall, hundred It that No within one law. provides person
land, feet of other or erect or use any person’s any building
establishment, hotel mill, for a building planing wood-working
hall, or for or other hazardous or public any manufacturing
the business, in from without first a writing obtaining permit
until after such no such shall be selectmen, and permit granted
shall as notice to owners of the selectmen adjoining property
be order, and to such notice.” It will after a hearing pursuant
observed, that to cover no it is broad building, enough any
small, for kind of manu- if any matter how enough only large
business, no matter of what materials and composed. facturing
or used of brick or stone cannot be erected A one building story
if hall, without a for a within one a public permit person by
even land. It of other or hundred feet person’s building any
show, to as to that be illustrations cannot necessary multiply
it the fire or life is beyond to an ordinance prevent preserve
statute, Nor and unreasonable. is the conferred by authority
is left to the select- the whole matter to that answer it say, any
in to act a reasonable be men, and that presumed they may
or re- not implication It does by necessary expressly manner.
it determine, that is to and to necessary them adjudicate quire
use for and the of fire erection the prevention proposed prohibit
life, them to of but leaves act upon any or the preservation
that such a is be said au- It cannot by-law whatever. reason
bill, therefore, so The far as founded the statute. thorized by
143 Newton v. Mass. it, Belger, cannot be maintained. upon
598.
this the that estab- upon ground can the prevail Nor plaintiff
show, no to There are nuisance. allegations is a public lishment
of receives in any damages its corporate capacity town that the
York & New Rail- New England Needham v. nature. a special
therein cited. 61, and cases road, 152 Mass.
and hill dismissed. sustained Demurrer