239 Mass. 401 | Mass. | 1921
This is a petition for a writ of mandamus. The petitioner is the police commissioner for the city of Boston. The respondents are the city of Boston, the mayor of the city of Boston and the nine members of the city council of the city of Boston. The general purpose of the petition is to compel the respondents to provide additional accommodations for the police of the city of Boston. The case comes before us by report on the petition and answer, certain records of the city council incorporated in the answer and admitted as evidence, and findings of fact made by the single justice.
It is alleged in the petition and admitted by the answer that
The position of the police commissioner so far as now material is, briefly stated, that in 1917 the Arch Street and Hawley Place site was approved by the person then holding that office.' It is open to inference, although not expressly stated or found, that in April, 1919, the present incumbent would have been satisfied with the immediate erection of a building on that site. On December 15,1919, at the request of the mayor the attention of the petitioner was directed to the Milk and Sears streets site and two days later he wrote the mayor saying that he favored the purchase of the latter site provided there should be “ no delay in the construction of a new Station 2.” On April 21, 1920, the petitioner wrote to the mayor reviewing somewhat the necessity for additional accommodations for the police, referring to the obligation imposed by statute upon the city of Boston to provide such accommodations as the police commissioner may require, reiterating his demand for compliance with that obligation and concluding in these words: “I much prefer the Milk and Sears Streets site to the Hawley Street site” for reasons which he briefly set forth. On May 29,.
The question presented on this form of report is not one involving the exercise of judicial discretion, but one of pine law whether upon the facts, admitted or found the petitioner is entitled as of right to the issuance of the writ. This court can make no findings of fact in this form of proceeding, but must declare the law applicable to the facts admitted or found. Boucher v. Salem Rebuilding Commission, 225 Mass. 18.
It is manifest from the debates of the council, which are incorporated in the record, that the minority of four, whose negative votes prevented the authorization of the purchase of the lot at the corner of Milk and Sears streets, voted as they did in large part if not entirely, for the reason that the lot already owned by the city on Arch Street and Hawley Place was thought by them to be adapted for use for a police station and would meet the requirements of the law therefor. There is no finding that the reasons stated by these members in debate were not the real reasons. Every presumption is in favor of good faith. Nevins v. City Council of Springfield, 227 Mass. 538, 541. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 50. That reason is untenable and unsound as matter of law. The letters of the police commissioner of April 21, August 9 and September 10, 1920, to which full reference already has been made, demonstrate that he has decided that the Arch Street and Hawley Place site already owned by the city does not conform to his requirements. It will not afford “the accommodations for the police” such as he requires. No argument can make plainer than the figures themselves that a required ground area of about fifty-eight hundred square feet or at least of fifty-seven hundred fifty-five square feet, as specifically set forth in his detailed requirements of September 10,1920, cannot' by any possibility be obtained from a lot of land containing only thirty-eight hundred sixty-two square feet. The latter is the area stated in the letter of the petitioner to the mayor under date of August 9, 1920, which was transmitted to the city council and the correctness of which does not appear to have been challenged in the debate reported in the record or elsewhere. It is of no
It is plain that the members of the city council should proceed in the performance of their duty in the light of the rule of law that the site now owned by the city does not conform to the requirements of the police commissioner and therefore cannot be considered in that connection. It must be presumed that as soon as they know the controlling principle of law, they will govern themselves according to it and will proceed at once to act as required by St. 1906, c. 291, § 1. Attorney General v. Apportionment Commissioners, 224 Mass. 598, 611.
It becomes unnecessary to consider the other questions raised at the argument.
A writ of mandamus is to issue to the effect that the respondents shall proceed forthwith to consider making provision for the police department in substantial accordance with the specifications set forth in the letter of the petitioner to the mayor dated September 10, 1920, and that in so doing they shall exclude from their deliberations and action every site for the building not con
So ordered.