Cruise & Smiley Construction Co. v. Town Council

This case comes before us on appeal from a decree of the Superior Court denying and dismissing the petition for a writ of mandamus. The petitioner seeks to have the respondent ordered to issue to it a license to conduct certain blasting operations in the town of Lincoln. The respondent filed a motion to dismiss the petition upon two grounds: (1) because the Superior Court had no jurisdiction to grant a writ of mandamus; and (2) because the petitioner had not stated a case sufficient in law to justify the issuance of such writ.

The petitioning corporation alleges in substance that it owns certain real estate located on Arnold avenue in the town of Lincoln consisting almost wholly of a ledge of rock, which ledge unless removed renders the premises useless. That it purchased said premises for the purpose of utilizing said rock for crushed stone in furtherance of its construction business. That in August, 1919, the petitioner notified the town council of its intention to remove said rock by blasting whereupon said town council on September 4, 1919, amended its ordinances and added thereto, among other things, the following section: "Section 1. No person shall use any gunpowder, gun-cotton, dynamite, nitro-glycerine, or other explosive for blasting within the limits of the Town of Lincoln, except upon license therefor duly granted by the Town Council, upon application made to said Council for that purpose, setting forth the location at which it is proposed to do such blasting, and upon such terms, conditions and restrictions as said Council may impose." That on September 6, 1919, petitioner made formal application to said town council for a license to blast. That on September 9, 1919, petitioner received from said town council a request for further specifications regarding location of proposed blasting. That on September 11, 1919, petitioner filed with the council a reply to such request, together with a plat. That on September 20, 1919, at a meeting of the town council said petition was heard and petitioner was given leave to withdraw. That petitioner, relying on the ordinances as they existed prior to the amendment, had entered into contracts for machinery, materials and labor to be used in connection with the development of said premises, all of which will involve considerable loss to petitioner unless a blasting license is granted.

It does not appear that prior to the amended ordinance of September 4 there was anything in the ordinances of the town requiring any notification, permit or license to do blasting. The petitioner while admitting it to be the duty of the town council to prescribe reasonable rules and regulations governing the use of blasting materials claims that it has the right, as a matter of law, to blast upon its own land in compliance with such rules and regulations; that the action of the town council requiring a permit to do blasting is illegal and void; that the said town council is only authorized and empowered to make rules and regulations and is without power to prohibit blasting or to require its assent before the right to do so can be exercised; and that Section 21, Chapter 50, General Laws of 1909, relates to the general use of explosives by the people at large while Section 29 of the same chapter allows the free exercise of the right to blast subject only to such reasonable conditions and restrictions as the municipality may determine.

Section 29 was enacted in 1895 and is included in General Laws of 1896 as Section 28 of Chapter 40. Section 21 was enacted in 1902, Public Laws, Chapter 988, and is now Section 21 of Chapter 50 of the General Laws of 1909.

Chapter 988 of the Public Laws contains no repealing clause and therefore we come directly to the question as to whether under Section 29 the petitioner has the right to carry on blasting as a matter of right, only subject to such rules and regulations as the town council may prescribe or whether he must obtain a license under the provisions of Section 21.

We do not see any conflict between these two sections. There may be some difficulty in seeing any usefulness in retaining Section 29 after the enactment of Section 21. The powers with which town councils are invested by Section 29 are included in those covered by Section 21. Under Section 21 they are authorized to prescribe rules and regulations governing the use of explosives for any and all purposes which would include their use for blasting.

We cannot agree with the contention of the petitioner that Section 21 relates to the "general use of explosives and explosive substances by the people at large" and that those who desire to use explosives for blasting are absolved from the provisions of that section and are only answerable to those of Section 29. It is true that Section 21 extends the supervision of the town council to the manufacture, storage, keeping, having in possession, sale and use of all explosives irrespective of any purpose for which they are to be used or by whom they are to be used and specially empowers the town council to grant licenses for such use and in the absence of such license to prohibit the use of the same.

If we consider the case independently of Section 21, we think that the power to make rules and regulations under Section 29 carries with it, at least impliedly, the power to require a license. The matter of granting a license is one of discretion on the part of the town council having in view the safety of the community and the protection of property.

It seems to be well settled that mandamus will not lie to control the exercise of a discretionary power, which would in effect substitute the discretion of the court for that of the person or body designated by statute and the law upon this point is well summarized in 18 R. C. L. p. 124, as follows: "It is a well recognized rule that where the performance of an official duty or act involves the exercise of judgment or discretion, the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter; he can only be directed to act, leaving the matter as to what particular action he will take to his determination. Therefore, where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control by mandamus. And as a general rule where an officer or subordinate body is vested with power to determine a question of fact involving the examination of evidence and passing on its probative force and effect the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be. Were the rule otherwise, instead of officers discharging their duties in accordance with their own discretion, that of a court would be substituted therefor. . . . On the other hand, if, in matters involving discretion, the inferior tribunal or officer refuses to act in toto, mandamus may issue to move him to action, leaving him to determine what particular action he will take in the matter."

In further support of the proposition that mandamus will not lie to direct or control the exercise of a discretionary power we may cite State v. Town Council, 18 R.I. 258; Corbett v.Naylor, 25 R.I. 520; Kenney v. State Board of Dentistry,26 R.I. 538; Roach v. Town Council of East Providence,35 R.I. 363.

The petitioner's appeal is dismissed, the judgment affirmed and the petition is remanded to the Superior Court for further proceedings.