The decision as printed
Supreme Judicial Court · from CourtListener · released Feb 27, 1902 · 3 pages · 153 KB
open the file ↗ · original at the source ↗
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