278 Mass. 441 | Mass. | 1932
The defendant on January 18, 1930, filed a petition to the board of aldermen of the city of Somerville
After the confirmation of the report of a master, a final decree was entered adjudging the license to be null and void, ordering the removal of the oil then stored in the tanks and
Somerville is within the metropolitan fire prevention district. G. L. c. 148, § 28. St. 1928, c. 325, § 1, the statute relating to fire prevention in force during the portion of 1930 here material, prohibits the use of a building for the storage desired by the defendant, unless a license therefor be granted by the fire marshal or by some one designated by him for the purpose. G. L. c. 148, § 30, as amended by St. 1929, c. 205, § 1. G. L. c. 148, § 31, as amended by St.. 1921, c. 485, § 5. No valid license can issue except after a public hearing on a prescribed notice. This must be notice by publication “at the expense of the applicant, by the clerk of the city . . . and also by the applicant by registered mail ... to all owners of real estate abutting on” the land in question. It is contended that these requirements were not met. No question is raised with regard to the notice by publication. It is argued, however, that the notice by registered mail was not properly given, in that the city clerk could not legally be made the agent for this purpose, was not duly authorized to act, and, in fact, did not give the statutory notice to Miss Barnard. This position cannot be maintained. We find nothing which prevents the applicant from acting through an agent. A corporation must so act in mailing notices. Nor do we see any impropriety in the conduct of a city clerk in acting for an applicant in this purely ministerial matter. In giving the notice by publication he is performing a public duty prescribed by the statute, but there is no incompatibility with that duty in his mailing notices also, in a private capacity as agent for an applicant. The statute does not disqualify him. The applicant may select his agent, and remains responsible for the action taken by the agent. No special authority by vote of the corporation was needed to validate the action of its general manager in making the city clerk its agent to notify abutting owners. In our opinion this was well within his duty in the general management of its affairs. See Knight v. Whitmore Manuf. Co. 248 Mass. 531.
The statute does not require as a condition of a valid
The evidence was presented and the case has been argued as if the fire marshal, pursuant to G. L. c. 148, § 31, as amended by St. 1921, c. 485, § 5, had authorized the board of aldermen to issue licenses and permits. Although it is not stated in the report, we assume such an appointment had been made. In such circumstances G. L. c. 148, § 45, gives to a person aggrieved by the action taken thereunder an appeal to the marshal. An appeal was filed by one
The master found that no fire hazard, loss or nuisance would result from the storage of fuel oil as the building was placed and constructed. It follows that, the license being valid and no nuisance existing, the bill cannot be maintained. Our order must be
Decree reversed.