We cannot say that the prohibition of the erection of a building of a greater height than 80 feet in class B, unless its width “on each and every public street on which it stands will be at least one-half its height,” was entirely for æsthetic reasons. We conceive that the safety of adjoining buildings, in view of the risk of the falling of walls after a fire, may have entered into the purpose of the commissioners. We are of opinion that the statutes and the orders of the commissioners are constitutional.
We think that the court has jurisdiction to dispose of the case in the merits, under this petition for a writ of mandamus. The wrong alleged is that the building commissioner, and afterwards the board of appeal, refused to give the petitioner a permit to erect a building. It is conceded that he was not entitled to a permit if the statutes and orders referred to are constitutional. The petitioner alleges that the board of appeal refused to do their duty, and that his only effectual remedy is by a writ of mandamus, ordering them to grant a permit. The case comes within the general rule giving jurisdiction to issue such writs. Farmington River Water Power vs. County Commissioners, 112 Mass. 206-212; Carpenter vs. County Commissioners, 21 Pick. 258-259; Attorney General vs. Boston, 123 Mass. 460. See Locke vs. Selectmen of Lexington, 122 Mass. 290; Attorney General vs. Northampton, 143 Mass. 589, 10 N. E. 450.
The building commissioner and the board of appeals are not judicial officers. St. 1892, p. 471, c. 419; St. 1894, p. 494, c. 443. The fact that a refusal to act is founded on a mistake of law does not preclude a remedy by a writ of mandamus. In cases where the duty to perform an act depends solely on the question whether a statute or ordinance is constitutional and valid, the question may sometimes be determined on a petition for a writ of mandamus. Attorney General vs. Boston, 123 Mass. 450; Warren vs. Charlestown, 2 Gray, 84; Larcom vs. Olin, 160 Mass. 102-110, 35 N. E. 113.
Petition dismissed.
6
Welch, Trustee, vs. Swasey, et al. 29 U. S. Supreme Court Reporter. 567, Oct., 1908
In error to the Supreme Judicial Court of the State of Massachusetts to review a judgment denying a mandamus to compel the board of appeal from the building commissioner of the city of Boston to issue a building permit. Affirmed.
Statement by Mr. Justice Peckham:
The plaintiff in error duly applied to the justices of the supreme judicial court of the state of Massachusetts for a mandamus against the defendants, who constitute a board of appeal from the building commissioner of the city of Boston, to compel the defendants to issue a permit to him to build on his lot on the corner of Arlington and Marlborough streets, in that city. The application was referred by the justice presiding to the full court, and was by it denied (193 Mass. 364, 118 Am. St. Rep. 523, 79 N. E. 745), and the plaintiff has brought the case here by writ of error.
The action of defendants in refusing the permit was based on the statutes of Massachusetts, chap. 333 of the Acts of 1904, and chap. 383 of the Acts of 1905. The reason for the refusal to grant the building permit was because the building site for the proposed building was situated in one of the districts B, as created under the provisions of the acts mentioned, in which districts the height of the buildings is limited to 80, or, in some cases, to 100 feet, while the height of buildings in districts A is limited to 125 feet. The height of the building which plaintiff in error proposed to build and for which he asked the building permit was stated by him in his application therefor to be 124 feet, 6 inches.
The designation of what parts in districts B and upon what conditions a building could be therein erected more than 80 while not more than 100 feet high was to be made by a commission, as provided for in the act of 1905, and the commission duly carried out the provisions of the act in that respect. The sole reason for refusing the permit was on account of the proposed height of the building being greater than the law allowed.