Commonwealth v. Atlas

Rugg, C. J. This complaint charges that the defendant commenced the erection of a building, without having first obtained a permit from the building commissioner of the city of Newton, in violation of ordinance. Agreed facts are that the defendant as a general contractor was employed to erect a block of seven brick stores by the owner of land in Newton, who first filed with the building commissioner plans therefor. The defendant thereupon placed batter boards and began with laborers and a steam shovel to excavate for cellars in accordance with such plans, and to place temporary wooden forms with the double purpose of prevention of caving and of serving as receptacles for concrete. No permit was issued for the erection of a building. It was provided by ordinances for the city of Newton, in § 147 that "Before the erection, construction or alteration of any building or part of any building, . . . the owner or lessee, or agent of either, or the architect or builder employed by such owner ... in connection with the proposed erection . . . shall . . . submit to the commissioner a detailed description of the location, purpose and construction of the proposed structure or work, on proper blanks to be furnished by the commissioner, and full and complete copies of the plans of such proposed work and such structural detailed drawings as the commissioner may require,” and in § 148 that “It shall be the duty of the commissioner to approve or reject any plans filed with him . . . within a reasonable time, and .... within ten days and no work shall be commenced until a permit is issued. . . .” Actual excavation for cellars of proposed buildings constituted work on the erection and construction of a building within the words of the ordinance. The making of foundations is as essential for a building as the fabrication of its walls. Truesdell v. Gay, 13 Gray, 311, 312. Trinity Church v. Boston, 118 Mass. 164. Reid v. Berry, 178 Mass. 260. Clifton v. Watuppa Reservoir Co. 243 Mass. 198, and cases there collected. Jacobus v. Mutual Benefit Life Ins. Co. 12 C. E. Green, 604, 606, 612, 617, 630. Brooks v. Lester, 36 Md. 65, 70. The case at bar is too plainly distinguishable in this particular from Trask v. Searle, 121 Mass. 229, 231, and cases like Clark v. Lee, 185 Mass. 223, to require discussion. The statute under which the ordinance purports to have been [82] enacted is G. L. c. 143, § 3. It enacts that a city other than Boston “may, for the prevention of fire and the preservation of life, health and morals, by ordinances . . . consistent with law and applicable throughout the whole or any defined part of its territory, regulate the inspection, materials, construction, alteration, repair, height, area, location and use of buildings and other structures within its limits” with exceptions not here material. That statute is a constitutional exercise of the police power. Salem v. Maynes, 123 Mass. 372. Storer v. Downey, 215 Mass. 273. Commonwealth v. Slocum, 230 Mass. 180. General Baking Co. v. Street Commissioners, 242 Mass. 194. It is plain that § 147 of the ordinance is within the scope of the enabling statute. The requirement for submission to a public officer of plans of proposed buildings showing location, size, material and details of construction has a rational connection with public welfare. The next section of the ordinance, § 148, is not within the scope of the statute under numerous of our decisions. There is established by that section no general rule, either to guide the landowner in selecting materials or designs for construction of his proposed building, or to govern the commissioner in reaching a determination whether to approve or reject the plans; nor is there any provision for review by the courts or other higher authority of the absolute discretion vested in the commissioner to prevent the landowner from erecting a proper building by refusing to issue a permit. The case at bar is governed upon this point by Commonwealth v. Maletsky, 203 Mass. 241, where the subject is discussed with convincing fullness by Mr. Justice Sheldon. To the same effect in substance are Commonwealth v. Hayden, 211 Mass. 296, Goldstein v. Conner, 212 Mass. 57, Kilgour v. Gratto, 224 Mass. 78, Cawley v. Northern Waste Co. 239 Mass. 540, and Commonwealth v. Badger, 243 Mass. 137. It is quite distinguishable from Commonwealth v. McCarthy, 225 Mass. 192. Plainly the complaint is founded upon that part of § 148 of the ordinance, which is invalid under these decisions. It follows that the request for a directed verdict in favor of the defendant ought to have been granted. Exceptions sustained.