CITY OF NEWTON vs. REISS ASSOCIATES, INC. (and a companion case [Note page114-1]).

THE FIRST CASE.

RONAN, J. The first case is a bill in equity filed October 18, 1951, under G. L. (Ter. Ed.) c. 148, Section 17, for a permanent injunction restraining the defendant from keeping, storing, or manufacturing certain explosive or inflammable fluids or compounds in any building or structure located upon a described parcel of land in Newton, in violation of c. 148, Section 13, in that the defendant has not obtained a license as required by said Section 13, then as amended by St. 1951, c. 329, [Note page115-1] or from keeping, storing, or manufacturing the said fluids or compounds in quantities not exceeding 156 gallons without a permit from the head of the fire department of Newton or from the State fire marshal as required by the regulations of the board of fire prevention regulations of the Massachusetts department of public safety, hereinafter called the board. The plaintiff appealed from a final decree dismissing the bill.

The defendant is engaged in the manufacture of plastic laminates. It produces laminated table tops made out of paper. Phenolic varnish is brought into the factory in 55 gallon metal drums. Isopropyl alcohol is brought in in 5 gallon cans. A quantity of varnish and a quantity of alcohol aggregating about 200 gallons are put into a 275 gallon tank where they are blended together by a mechanical mixer. About 5% of the mixture consists of the alcohol which has been added for the purpose of thinning the varnish. The 275 gallon tank is open at the top. The flash point of the varnish is 90 degrees Fahrenheit and that of the alcohol is 70 degree Fahrenheit. From the mixing tank the fluid runs into an open trough having a capacity of 15 to 20 gallons into which rolls of paper are dipped, and after being impregnated with the mixture in the trough, the paper is run through rollers to remove the excess liquid before passing on to drying and other manufacturing processes.

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The defendant began in March or April, 1949, to manufacture plastic laminates at the present location. It had no permit to keep 156 gallons or less of inflammable fluids or compounds in accordance with the regulations of the board, and it had no license from the board of aldermen of Newton, the local licensing authority, as provided in G. L. (Ter. Ed.) c. 148, Section 13, except that a license was granted to the Fisher Plastics Corporation in 1946 for the storage of 5,000 gallons of synthetic resin coating solution in 50 gallon steel drums in a building other than one now on the premises. This license was revoked on January 15, 1951, after notice and hearing, for failure to file annually certificates of registration.

The statute, G. L. (Ter. Ed.) c. 148, Section 13, as amended, relating to licenses, so far as material, provides, "No building or other structure shall . . . be used for the keeping, storage, manufacture or sale of any of the articles named in section nine, unless the local licensing authority shall have granted a license to use the land on which such building or other structure is or is to be situated for the aforementioned uses . . .. The board may by regulation prescribe the amount of any of the articles named in section nine that may be kept in a building or other structure without a license and registration, or either of them." Phenolic varnish and isopropyl alcohol by reason of their flashing point being below 100 degrees Fahrenheit are included in class A in the regulations of the board as highly inflammable fluids, and by virtue of said regulations "may be kept in a building or other structure without a license or registration, or either of them, provided a permit has been obtained therefor," and provided further that not more than 156 gallons are kept.

There is no dispute concerning the facts. The principal question is whether the handling of the varnish and alcohol by the defendant in the ordinary course of its business in "batches" exceeding 156 gallons constitutes the keeping of the fluids in a building and requires a license under Section 13.

The method of impregnating the paper, as observed by

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various officials inspecting the plant on different occasions, was not a temporary casual process but was an established and ordinary step in the manufacture of the plastic laminated products. The mechanical equipment as disclosed by the testimony and shown by the photographs has been permanently set up, and the treatment of the paper with this compound of varnish and alcohol was a mere matter of routine. The paper so treated formed the basis for the products manufactured by the defendant. Two hundred gallons are mixed and fed into the trough. The tank serves not only as a mixing receptacle but also as a reservoir. It is reasonable to assume that, if the impregnation of the paper is to continue, the tank must be refilled from time to time and its contents mixed and discharged into the trough in order that the trough may be maintained at its proper level for the treatment of the paper. We do not know how long a tank containing 200 gallons, which is the usual amount placed in it, would last in supplying the trough, but whether for a short or long period of time is immaterial from the point of view of the statute or regulation because the usual and practical operation of the equipment would call for a supply of the compound in the tank during all the time that the manufacturing process is being conducted.

We do not agree, as urged by the defendant, that the keeping of the mixture in the tank in these circumstances was only casual or temporary, or that the use of the mixture was only an isolated event, or that the possession of the mixture in the factory, whether dealing with a single lot of varnish or alcohol or with a series of lots poured into the tank as the needs of the manufacturing process required, was merely a transitory event which did not come within the statute or regulation. Cases arising out of fire insurance policies and determining the effect upon the policy where the risk was increased by the presence of inflammable articles upon the insured premises or articles expressly prohibited by the policy are not in point. See First Congregational Church of Rockland v. Holyoke Mutual Fire Ins. Co. 158 Mass. 475, 478;

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Rabinovitz v. National Fire Ins. Co. 258 Mass. 508; Thomson & Kelly Co. v. United States Merchants & Shippers Ins. Co. 263 Mass. 181, 187. These cases bear a remote analogy to the question here presented. The use of the premises which the parties contemplated in making a contract of insurance as bearing upon the scope of the policy bears little resemblance to the interpretation of a statute or regulation, governing the keeping of the inflammable or combustible material in a building, which was enacted to protect the public from the danger of explosions and fires.

The final decree is reversed and a final decree is to be entered granting injunctive relief by restraining the defendant from violating the statute and regulations, but the provisions of said final decree covering matters specifically mentioned in the final decree to be entered in the companion case shall become effective at the times mentioned in the decree in the second case.

So ordered.

THE SECOND CASE.

This is a bill in equity brought under G. L. (Ter. Ed.) c. 40, Section 30B, as amended, to enjoin the defendants from using a parcel of land and building situated in Newton in violation of Section 576(A) of the zoning ordinances of the city. The plaintiff appealed from a final decree enjoining the defendant Reiss Associates, Inc., only to a limited extent.

At the argument before this court, the parties agreed that the final decree should be affirmed except a new second paragraph [Note page118-1] should be substituted for the second paragraph in the decree entered in the Superior Court. The decree as so modified is affirmed.

So ordered.