City of Salem v. Maynes , 123 Mass. 372 ( 1877 )

Gray, C. J.

There can be no doubt of the right of the Legislature, in the exercise of the police power, and for the protection of persons and property against the dangers of fire, to authorize cities and towns, by ordinances and by-laws, to restrict or prohibit the erection of wooden buildings within the municipality, or within any district thereof. Respublica v. Duquet, 2 Yeates, 493. Wadleigh v. Gilman, 3 Fairf. 403. All contracts between individuals, and even charters granted by the state, are subject to the exercise of this power. Commonwealth v. Intoxicating liquors, 115 Mass. 153. Woodlawn Cemetery v. Everett, 118 Mass. 354. Munn v. Illinois, 94 U. S. 113.

The St. of 1872, c. 243, has conferred on the cities and towns, in this Commonwealth authority to pass such ordinances and bylaws, and on this court jurisdiction in equity to restrain the construction of buildings in violation thereof. The case stated shows that the city of Salem duly passed an ordinance providing that no persons should erect or cause to be erected a wooden building exceeding certain dimensions within a fire district, the boundaries of which were fixed by the same ordinance ; and that the defendants began to erect such a building within those limits after the ordinance took effect. The facts that, before the passage of the ordinance, the defendants had begun work on the cellar upon the site of the proposed building, and had made a contract between themselves for the .erection of the building, and had bought and prepared lumber to carry out that contract, does not exempt them from the operation of the ordinance.

jDecree for the plaintiff.