Garage. Boston, Street commissioners. License, Revocation.
Since St. 1913, c. 577, as amended by St. 1914, c. 119, contains no provision giving to the street commissioners of the city of Boston power to revoke a permit for the erection and maintenance of a garage granted under its terms, the board has no power to revoke such a permit without a hearing and without a statement of any grounds, where no condition upon which it was issued has been violated and expenditures have been made for improvements in accordance with its provisions. Following General Baking Co. v. Street Commissioners of Boston, 242 Mass. 194. The mere fact that a license to erect, maintain and conduct a public garage, issued by the board of street commissioners of the city of Boston under the statutes above described, contains at its top the words, "This License must be approved by the Building Commissioner," does not make compliance with that notice a condition precedent to the validity of the permit. The duty placed upon the board of street commissioners of the city of Boston by St. 1913, c. 577, as amended by St. 1914, c. 119, cannot be delegated by the board; nor can the board make the decision or approval of another person or body a condition of its own determination. The fact that, in a vote revoking the license above described without notice and without a hearing, the board recited that "the action of the board was under a misunderstanding," where the records of the board did not show anything in support of such an assertion, could not prevent the issuance of a writ of certiorari quashing the order of revocation. Whether, in any circumstances, a misunderstanding by the board of street commissioners of the city of Boston causing the granting of a permit to erect, maintain and conduct a public garage under St. 1913, c. 577, as amended by St. 1914, c. 119, would justify a revocation of the permit without notice and without a hearing, was not considered. A landowner applied to the board of street commissioners of the city of Boston in a single document for a permit to erect a public garage and for a license "to keep, store gasoline 500 gallons in tank" at a certain location in the city. The board issued separate licenses, one granting permission "to erect, maintain, conduct a Public Garage at" the designated location, and the other granting a license "for the keeping — storage — sale of gasoline 500 Gallons in tanks" at the location. Later without notice or a hearing, the board issued an order that "the permit for a public garage and 500 gallons of gasoline at" the location "is hereby revoked, and the permit ordered surrendered,. . . ." The licensee petitioned for a writ of certiorari quashing the order for the revocation of the license "to erect, maintain, conduct a Public Garage." In ordering the issuance of the writ, this court stated that, the petition being confined to the revocation of the permit to erect, maintain and conduct a public garage, it was not necessary to consider a contention of the respondents that the license as to gasoline was void because the building in which it was to be exercised was not in existence when the application was allowed.
WAIT, J.
This case is governed by the law laid down in General Baking Co. v. Street Commissioners of Boston, 242 Mass. 194, and in Lowell v. Archambault, 189 Mass. 70.
The defendants have sought to distinguish it, by urging that the permit granted to erect, maintain and conduct a public garage on the premises was made conditional on approval by the building commissioner, and that such approval had not been obtained before the attempted revocation. The permit bore the words, "This License must be approved by the Building Commissioner"; but compliance with the notice does not constitute a condition precedent to the validity of the permit. It is true that the owner must comply with all requirements of the law, and that this may necessitate obtaining other and further licenses, permits or approval from other boards or officials; but the permit which he must obtain from the board of street commissioners is distinct from them, and the decision, whether to grant or to withhold it, is based upon other and different considerations from those which govern their issue.
St. 1913, c. 577, as amended by St. 1914, c. 119, which requires owners of premises on which they wish to build garages to obtain permits and empowers the board of street commissioners to grant or withhold them, provides that "said board shall hear all parties interested, and after giving consideration to the interests of all owners of record notified, and the general character of the neighborhood in which is situated the land or building referred to in the application, shall determine whether or not the application shall be granted and a permit issued." This duty the board cannot delegate; nor can it make the decision or approval of any other a condition of its own determination. Commonwealth v. Staples, 191 Mass. 384. Commonwealth v. Maletsky, 203 Mass. 241. Brown v. Newburyport, 209 Mass. 259.
The vote of revocation recites that "the action of the board was under a misunderstanding"; but the record before us fails to show anything in support of this assertion. Whether in any circumstances a misunderstanding would justify a revocation we do not consider.
The petition is confined to the revocation of the permit to erect, maintain and conduct a public garage, and does not concern the license to store gasoline which was also granted and revoked. It is, therefore, not necessary to consider the contention of the respondents that the gasoline license was void, under Cheney v. Coughlin, 201 Mass. 204, because the building in which it was to be exercised was not in existence when the application was allowed.
The justice who heard the petition was right in ruling that the revocation was invalid; and his order must be affirmed.
Writ of certiorari to issue.