Home TOWN OF SHARON vs. LOUIS C. SEGAL & others. [Note 1]

6 Mass. App. Ct. 853

March 2, 1978

The by-law which was adopted at the 1972 annual town meeting and which was thereafter approved by the Attorney General under the provisions of G. L. c. 40, Section 32, reads in pertinent part as follows: "After April 1, 1973, no person shall operate a boat on Lake Massapoag powered by internal combustion engines whose total horsepower rating at time of original manufacture exceeds sixty (60) horsepower." 1. The provisions of St. 1943, c. 73, Section 2, as amended by those of St. 1945, c. 503, Section 2, were confined in their operation to such rules and regulations as might be adopted by the town's "board of park commissioners, or through its board of selectmen or planning board when acting as park commissioners" (see St. 1943, c. 73, Section 1, as amended by St. 1945, c. 503 Section 1) and, if they survived beyond the effective dates of St. 1960, c. 275, Sections 2 and 4 (a question which we need not and do not decide), they had no application whatsoever to a by-law such as the present which was adopted by the town meeting, which fell within the general purview of G. L. c. 40, Section 21 (1) (see West Roxbury v. Stoddard, 7 Allen 158, 170-171, 172 [1863]), and which was expressly authorized by the second sentence of G. L. c. 131, Section 45, inserted by St. 1971, c. 498. 2. As the quoted portion of the by-law did not purport to "authorize" anything, there was no occasion to comply with any of the "approval" provisions which were originally found in the second sentence of G. L. c. 131, Section 45, as appearing in St. 1967, c. 802, Section 1, and which, following the effective date of St. 1971, c. 498, and until 1975 were found in the third sentence of said Section 45. 3. If the amendment of said third sentence which appears in St. 1975, c. 147, has any vitality in view of the subsequent passage of St. 1975, c. 706, Section 251 (see McDonald v. Superior Court, 299 Mass. 321, 324-325 [1938]), there is nothing to suggest that that amendment was intended to have any retrospective effect. 4. When we study the explicit provisions of the second and third sentences of G. L. c. 131, Section 45, as they read in 1972, in conjunction with the earlier enacted and somewhat general provisions of G. L. c. 90B, Sections 11(k) and (n) and 15(b) and (c), as they read in 1972, we conclude that there was room for the town to adopt a by-law such as the one in question which would not require approval under said Section 15(c). Compare Commonwealth v. Baronas, 285 Mass. 321, 322-333 (1934); Druzik v. Board of Health of Haver-hill, 324 Mass. 129, 134-136 (1949); Brown v. Carlisle, 336 Mass. 147, 150-151 (1957). See also Rep. A. G., Pub. Doc. No. 12, at 91 (1973). 5. No other question has been argued within the meaning of Mass. R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

Judgment affirmed.


[Note 1] The Attorney General and the Director of the Division of Marine and Recreational Vehicles, neither of whom has appealed.


6 Mass. App. Ct. 853

March 2, 1978

We view this matter, as we must, as an action under G. L. c. 71, Section 43A, as appearing in St. 1975, c. 337. If the judge erred in dismissing the plaintiff's action pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 755 -756 (1974), review of the ensuing judgment may not be had by way of appeal. MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 613-614 (1961), and cases cited. The proper method of raising the issues which the plaintiff has attempted to argue

Page 854

in this court is discussed in Dixon v. School Comm. of Framingham, 5 Mass. App. Ct. 857 (1977).

Appeal dismissed.