Building Commissioner v. McManus

This bill in equity is brought by the building commissioner of Brookline to restrain the defendant from violating the zoning by-law of that town by using premises owned and occupied by him for an undertaking establishment and there carrying on the business of an undertaker. The bill was filed June 8, 1927.

It is agreed that on May 23, 1922, a zoning by-law was duly adopted by the town dividing it into districts, each subject to special regulations as to the use and construction of buildings therein located; that the by-law was duly approved by the Attorney General and published as required by law; and that it became effective on June 4, 1922. Section 3 of the by-law, in part, is as follows: “In a district marked by the numeral 3 no building shall be used and no building shall be erected which is intended or designed to be used for any purpose except one or more of the following: — ...(e) Other purposes which are not particular industries, trades, manufacturing or commercial purposes.” It is also agreed as follows: “The defendant William H. McManus became the owner and occupant of the premises No. 26 Davis Avenue, Brookline, in February, 1925; he is an undertaker and since June, 1925, has maintained and conducted an undertaking establishment and funeral home on the same; he resides elsewhere in the said town and uses the premises solely for the above named purpose; his books and accounts are kept there; bills are sent out from there; orders are received there, and funerals are conducted on the premises; funerals are managed from the premises as the central office; embalming of bodies is performed on the premises; bodies are carried into and from the building in baskets and caskets; embalming table and embalming paraphernalia are maintained and used on the premises; chairs are kept there for use at funerals on the premises and elsewhere; some caskets are stored on the premises; a hearse is on the premises as occasion requires; name is in the telephone directory as follows: ‘McManus, Wm. H. Undertaker, 26 Davis Ave. Residence, 173 Pond Avenue’; a small sign on the building reads ‘McManus Funeral Home’; assistant lives on the premises; those things are done and performed which usually *273are done and performed by undertakers. The defendant has a special license as an embalmer in addition to his undertaker’s license.” It is further agreed that the premises above referred to “are located in a district No. 3 as contained in the said zoning by-law.” The question to be decided is whether the use of the premises made by the defendant is prohibited by clause (e) of § 3. The agreed facts make it plain that the defendant was using the premises for a commercial purpose.

Undertaking, as commonly carried on, is not a profession; it is a business or occupation. It has been held that the working tools of an undertaker are not professional instruments. O’Reilly v. Erlanger, 108 App. Div. (N. Y.) 318. See also Rowland v. Miller, 139 N. Y. 93. An undertaker is required to be licensed by a board of health under G. L. c. 114, § 49. An embalmer is also required to be registered under G. L. c. 112, §§ 82, 87. The fact that before a person can lawfully engage in the business of embalming he is required to submit to examination and be registered does not change business into something else any more than the occupations of others are changed by the requirement that they be licensed. See Wyeth v. Cambridge Board of Health, 200 Mass. 474.

The circumstance that on March 4, 1926, a criminal complaint was issued in which the plaintiff as building commissioner was complainant against the defendant for violation of that part of the zoning by-law above set forth, and the defendant was convicted and sentenced to pay a fine in the District Court, and on appeal to the Superior Court was found not guilty, is not a bar to the maintenance of this bill. Article 4, § 3 of the zoning by-law provides that the building commissioner “shall take immediate steps to enforce the by-law by making complaint ... or by applying for an injunction to the Superior Court.” It is the contention of the defendant that this provision of the by-law gives the commissioner one of two remedies, and that having elected to proceed by complaint this proceeding for injunctive relief will not lie.

*274It is a sufficient answer to this contention to say that the by-law gives the plaintiff two remedies; because he has pursued one of them for the first violation, he is not barred from invoking the other for a subsequent violation. We do not decide that both remedies may not be pursued concurrently, nor that the word "or” cannot properly be construed as "and.” “It often is construed as 'and’ in order to accomplish the intent manifested by the entire act or instrument in which it occurs.” Gaynor’s Case, 217 Mass. 86, 89.

The statement made by the plaintiff to the defendant does not prevent him from proceeding in his official capacity to prevent a violation of the zoning by-law. The plaintiff was without authority to waive or modify the provisions of the by-law. Franklin Savings Bank v. Framingham, 212 Mass. 92, 95. Brookline v. Whidden, 229 Mass. 485, 492, 493. The cases cited by the defendant in this connection are distinguishable in their facts from the case at bar.

Decree affirmed with costs.