116 Mass. 254 | Mass. | 1874
This is a bill in equity to restrain the exercise by the defendant of an offensive trade in violation of an order of the board of health of the city of Taunton. Various objections are made to the granting of the relief prayed for, but we are of opinion that none of them can be sustained.
1. By the Gen. Sts. c. 26, § 2, no different provision being made by law, the city council might appoint a joint committee of their body a board of health. By an ordinance of the city of Taunton, two members of the board of mayor and aldermen and three members of the common council were constituted such a board. No provision as to the mode of appointment was made by the ordinances of the city, or by the joint rules and orders of the city council. But the orders of each branch provided that 8,11 committees should be appointed by the mayor and the president of the common council respectively. It follows that the members of the joint committee, constituted by the ordinance a board of health, were duly appointed by the presiding officers of each branch, and that the board so constituted and appointed was legally organized.
The authority of the legislature to confer powers of this character, for the protection of the public health and the suppression of nuisances, upon municipal boards or officers, is well settled. Such powers must be summarily exercised, in order to accomplish their object. To allow the offensive trade to be carried on until it had been decided by a jury to be a nuisance, and the questions of law arising upon such a trial had been determined by the court, would defeat the purpose of the statute. It is a case in which private rights must be held subordinate to the public welfare, and falls within the strictest interpretation of the maxim, Salus populi supremo lex. The rights of any person to be affected by the order of prohibition are reasonably secured by requiring the order to be served upon him or the person in charge of his business, and by allowing him an appeal to a jury, to be empanelled immediately, without waiting for a regular term of court, and by whose verdict the order may be altered, annulled or affirmed. Belcher v. Farrar, 8 Allen, 325.
The case of Salem v. Eastern Railroad, 98 Mass. 431, differed from this in being a suit to recover the expenses of removing a nuisance in accordance with a special order under the Gen. Sts. c. 26, §§ 8-10, respecting which the defendant had had no opportunity to be heard, either before the board of health or on appeal; and the decision allowing the defendant to contest the facts found by the order was based upon that distinction.
3. But an order of the board of health, under the Gen. Sts. c. 26, § 52, is not in the nature of an adjudication of a particular case, but of a general regulation of the trade or employment mentioned therein. It is not to be construed with technical strictness, but with the same liberality as all votes and proceedings of municipal bodies or officers who are not presumed to be versed in the forms of law; and every reasonable presumption is to be made in its favor. Commonwealth v. Patch, 97 Mass. 221. It need not state in direct terms that the trade which it prohibits is a nuisance. It is sufficient if the order clearly shows that in the opinion of the board of health the exercise of such trade will be hurtful to the inhabitants, or injurious to the public health, or be attended by noisome and injurious odors.
The trade or employment described in the order of prohibition now before us is a single trade or employment, which includes not only “ preparing tripe, manufacturing neat’s-foot oil, tallow and glue stock, and the boiling and trying of bones, hoofs, heads, refuse and partially decayed animal matter,” but also, “ as a part of such trade or employment, the storing about the premises where such business is carried on of putrid meats, bones, heads, legs and the various other materials from which offensive smells emanate, which are used in such trade or employment.” The very terms of this description sufficiently manifest and declare the opinion of the board of health that the trade or employment in question is, to say the least, attended by noisome and injurious odors. The order was therefore a valid exercise of the power conferred upon the board of health by the statute.
5. The board of health, in exercising this and like powers under the statute, acts in behalf of all the inhabitants of the city. It is expressly charged by the Gen. Sts. c. 26, § 55, to take all necessary measures to prevent the exercise of any trade in violation of its order; and for that" purpose it may, without special authority, bring a suit in the name of the city. Winthrop v. Farrar, 11 Allen, 398. Salem v. Eastern Railroad, 98 Mass. 431. Watertown v. Mayo, 109 Mass. 315. In such a suit, as in any other lawfully brought in the name of the city, the bill may properly be signed by the mayor. Central Bridge v. Lowell, 15 Gray, 106, 122. Nichols v. Boston, 98 Mass. 39.
6. It is only when the plaintiff takes the same position as if he had demurred in an action at law, and sets down the cause for hearing upon the bill and answer, and thereby precludes the defendant from proving his allegations, that the statements in the answer are to be taken to be true. Perkins v. Nichols, 11 Allen, 542. But in the present case the plaintiff filed a general replication, and the parties afterwards submitted the case to the decision of the court upon an agreed statement of facts. The allegations in the answer are not therefore to be taken as true further than they are supported by the facts agreed.
Decree for the plaintiff.