Board of Health v. Tupper
210 Mass. 378
Mass.
1912
Check Treatment
Braley, J.

Thе appeal from the interlocutory order overruling the demurrer is not before us, as no final decree hаs been entered. Forbes v. Tuckerman, 115 Mass. 115, 118, 119. Fuller v. Chapin, 165 Mass. 1, 3. But as the exceptions cover in scope the question whether proof of the аllegations of the bill as amended makes out a case for equitable relief, as well as the *381question whethеr the evidence warranted the decree ordered, the defendant to this ‍‌‌‌‌​‌‌​​‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌‌‍extent has all the advantage which he could have derived from the appeal. Ontario Bank v. Root, 3 Paige, 478. Small v. Boudinot, 1 Stockton, 381. Thompson v. Thompson, 1 Yerg. 97.

The bill does not go upon the general equity jurisdiction оf the court, to restrain the unlawful use of a building which creates a nuisance made punishable as a statutory, оr common law misdemeanor. Vegelahn v. Guntner, 167 Mass. 92. If it were so brought, the defendant’s building not having as yet been used for an offensive purpose, there would have to be adequate proof, that unless relief were given the threatened act sought to be enjoined would be so substantial in character that the public health might suffer before effectuаl steps could be taken to stop its continuance or to punish the wrongdoer. Attorney General v. Metropolitan Railroad, 125 Mass. 515, 516. Beck v. Railway Teamsters Protective Union, 118 Mich. 497. Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212. In re Debs, petitioner, 158 U. S. 564. See 2 Dan. Ch. Pl. & Pr. (6th Am. ed.) 1620, note a. But the provisiоns of the B. L. c. 102, § 69, which have been held to be constitutional, make it unlawful for any person to “ erect, occupy or use for a stable ‍‌‌‌‌​‌‌​​‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌‌‍any building in a city whose population exceeds twenty-five thousand unless such use is licensed by the board of health of said city, and, in such case, only to the extent so licensed.” Newton v. Joyce, 166 Mass. 83. And by § 71, under which the bill is brought, a violation of these provisions is made a penal offense, while jurisdiction in equity is conferred upon the Superior Court “ to restrain such erection, occupation or use.” The statute was designed to protect the health and comfort of the community, and should receive a con- . struction which the plain meaning of the wоrds imports. If there is reasonable certainty that a building is to be unlawfully occupied and used for the stabling of horsеs, the public authorities need not delay action until the purpose of the owner or those in control hаs been accomplished, but may under § 71 prevent the attempted creation of a statutory nuisance, еven if no actual injury to the public has been inflicted. Langmaid v. Reed, 159 Mass. 409, 411.

The evidence justified the finding of the judge, that it was the *382defendant’s intention to occupy and use as a stable for horses the building which he had erected, and whether the board ‍‌‌‌‌​‌‌​​‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌‌‍of health acted arbitrarily and unjustly in refusing him a license cannot be reviewed in these proceedings. White v. Kenney, 157 Mass. 12. Lowell v. Archambault, 189 Mass. 70.

Nor wаs evidence of the excellent sanitary conditions of the building, or of its complete plumbing and appоintments, and ■ mode of construction, or that stables of other persons located in more densely populated sections of the city had been licensed admissible. The statute makes no distinction of this nature, and, if the board in the instances to which he referred had exhibited partiality or want of sound judgment, the defendant was answerаble only for his failure to comply with the law, to which their . alleged delinquencies were no defense.

The testimоny for the plaintiffs, however, upon which the decision of the judge rests, was given by the plaintiff, James Gr. Coffey. It is true, that whilе any statements by this plaintiff either individually or as a member of the board exhibiting bias or prejudice against the defendant would be collateral to the question of the defendant’s intention to violate the statute, yet they would have been admissible to affect his credibility as a witness, and the weight to be given to his testimony. Day v. Stickney, 14 Allen, 255. But the exception tо the exclusion of the question asked of the defendant in direct examination, whether he had not been informеd by Coffey that a license would not be granted because he had published articles in the newspapers reflecting upon the refusal of the board to grant a license, was put upon the ground that the offer was to show unjust discrimination. The evidence subsequently offered, ‍‌‌‌‌​‌‌​​‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌‌‍that this witness had said to the defendant that he would not grant a licеnse under any circumstances because of his antipathy to and dislike for him and because of his conduct in publishing statements in the newspapers, apparently was excluded for the same reason. No exceрtion, however, was taken to the exclusion, and the question which the defendant endeavors to raise is not bеfore us.

The first, second, third and fourth requests for rulings present no questions which are not disposed of by what we have sаid, except that under the first request the inquiry remains, whether the plaintiffs have established their right to institute and prosecute *383the suit. It is, of course, clear that under § 71 a criminal prosecution could be instituted only in the name of the Cоmmonwealth, or if an information in equity had been presented it must have been in the name of the Attorney General. Attorney General v. Metropolitan Railroad, 125 Mass. 515. The plaintiffs are described and they prosecute as a board of health, but their ‍‌‌‌‌​‌‌​​‌‌​​​​​‌‌‌‌​​‌‌​​‌‌‌​​‌‌​​‌​‌‌‌​‌​‌‌‌‌‌‍powers and duties arе defined by statute. R. L. c. 75, §§ 9-15, 65-90. Belmont v. New England Brick Co. 190 Mass. 442. The authority to preserve the health of the inhabitants is lodged in the municipality, and the membеrs of the board are officers of the city. Salem v. Eastern Railroad, 98 Mass. 431, 442. It is for this reason that suits to enforce the orders of a board оf health for the removal, suppression, and abatement of a nuisance, or for its prevention have unifоrmly been brought in the name of the city or town, since the decision in Winthrop v. Farrar, 11 Allen, 398. Watertown v. Mayo, 109 Mass. 315. Taunton v. Taylor, 116 Mass. 254. Quincy v. Kennard, 151 Mass. 563. Newton v. Joyce, 166 Mass. 83. Brookline v. Hatch, 167 Mass. 380. Cambridge v. Trelegan, 181 Mass. 565. Lowell v. Archambault, 189 Mass. 70. Belmont v. New England Brick Co. 190 Mass. 442. The bill in effect, however, is in behalf of the city оf Worcester, and it may be amended to make the city in form the plaintiff. ' If this is done, the order will be, exceptions overruled, otherwise they must be sustained. Fay v. Walsh, 190 Mass. 374, 377, 378.

So ordered.