322 Mass. 634 | Mass. | 1948
This is an information brought by the Attorney General at the request of the department of public health seeking to enjoin the city of Woburn from polluting the Aberjona River. From a decree granting the relief sought, the defendant appealed.
The evidence warrants the following findings: The Aber-jona River rises in the northwesterly part of the town of Reading and flows through Woburn and thence into Winchester where it joins the upper Mystic Lake, of which it is the “main feeder.” The river has several tributaries. A considerable portion of the upper Mystic Lake is maintained by the metropolitan parks division as a recreational center, one of the chief attractions of which is a public bathing beach. The city of Woburn, hereinafter called the city, approximately twenty years prior to the events giving rise to the present controversy, constructed a sewer which extends from.North Woburn in the valley of the Aberjona River to a point near the Winchester-Woburn-Stoneham boundary line where it joins the metropolitan sewerage system. In the area through which the sewer runs are numerous industrial plants, mainly tanneries, which are connected with it. At times the sewer has not been adequate to take care of the sewage flowing into it, and it has overflowed at the manholes. When this occurred, as it has many times, the overflow would run off into the Aberjona River or one of its tributaries. This overflow, which consisted of sewage, animal hair, fleshings and other putrescible
This information was brought under St. 1911, c. 291, and G. L. (Ter. Ed.) c. Ill, § 5, as amended by St. 1945, c. 615, to enforce these orders. The position of the city is that neither of these statutes is applicable to it, a municipal corporation. The city further contends that St. 1911, c. 291, was superseded by G. L. (Ter. Ed.) c. Ill, § 5, as amended, and that if this statute should be held to apply to a municipal corporation the evidence fails to show that it has been violated.
The provisions of St. 1911, c. 291, a special act, are set forth in the footnote.
A question of more difficulty is whether this statute applies to a municipality. We recognize, as the defendant has argued, that where a statute uses the word "person” or "corporation” it has usually been construed in our decisions not to include a city or town. Donohue v. Newburyport, 211 Mass. 561, 566-569, and cases cited. O’Donnell v. North Attleborough, 212 Mass. 243. Howard v. Chicopee, 299 Mass. 115, 121. The statute under consideration, however, does not use either of these words. In § 1 the State board of health
Decree affirmed with costs.
The decree provided “That the City of Woburn, ... its officers, servants, agents and employees be, and they hereby are, enjoined from discharging any sewage or wastes containing any putrescible organic matter or other deleterious substances into the Aberjona River or any tributary thereof.”
“An Act to provide for the protection of the public health in the vicinity of the towns of Winchester and Stoneham and the city of Woburn. Section _1. The state board of health is hereby authorized and directed to prohibit the entrance or discharge of sewage into any part of Aberjona river, or its tributaries, and to prevent the entrance or discharge therein of any other substance which might be injurious to public health or might tend to create a public nuisance. Section 2. The board shall consult and advise with the owner of any factory or other establishment situated on or near the said river or any of its tributaries, at his request or of its own motion, as to the best practicable and reasonably available means of rendering the waste or refuse therefrom harmless. Section 3. The supreme judicial court or any justice thereof, and the superior court or any justice thereof, shall have jurisdiction in equity to enforce the provisions of this act, and any order made by the state board of health in conformity therewith. Proceedings to enforce any such order shall be instituted and prosecuted by the attorney-general upon the request of the state board of health. Section 4. Whoever permits the entrance or discharge into any part of Aberjona river, or its tributaries, of sewage or of any other substance injurious to public health or tending to create a public nuisance shall be punished by a fine not exceeding five hundred dollars for each offence. Section 5. This act shall take_effect on the first day of July in the year nineteen hundred and eleven.”
Statute 1914, c. 792, created the State department of health which was given all the powers and duties conferred and imposed by law upon the State board of health. By St. 1919, c. 350, § 96, the State department of health became the department of public health.