Commonwealth v. Sisson
75 N.E. 619
Mass.
1905
Check Treatment
Loring, J.

[Aftеr the foregoing statement of the case.] The defendants’ grievance is that by an order of the board of fish and game commissioners they have been deprived without compensation being made therefor of the right to conduct the business of sawing wood, as they and their predecessors in title have conducted it for thirty years last past; that from this decision there is no appeal; and that not only was the order made without a hearing, but when a hearing was asked for by the defendants it was denied.

*250Their contention is (first) that under the act they had a right to be heard at the trial in the Superior Court on the questions of fact detеrmined by the board ; (second) that they could not .be deprived by the board of their prescriptive right to discharge sawdust into Konkapot River without being heard and by a finding not made on sworn evidence ; and (third) that under any circumstances this right cannot be taken without compensation being made for it.

In support of their contention they argue that the board, in determining (1) that the fish in Konkapot River are of sufficient value to wаrrant the prohibition or regulation of the discharge of sawdust therein, and (2) that the discharge of sawdust from the defendants’ mill materially injured such fish, was a judicial action ; and, in connection with this argument, they rely on the distinсtion pointed out in Salem v. Eastern Railroad, 98 Mass. 431, between the action of a local board of health in making general regulations respecting articles capable of conveying infection or creating sickness and thе authority of such a board to examine into the existence of any specific ease of nuisance, filth or cause of sickness dangerous to the public health and to make an order for the removal of it. The former being a rule for all is legislative in character; the latter being a determination as to a particular thing resulting in an order to the owner of it to do a specified act is judicial in character. For a later case where it is pointed out that similar legislative and judicial powers are given to the State board of health in connection with the pollution of a body of water used as a supply of a city or town, see Nelson v. State Board of Health, 186 Mass. 330.

We agree with the defendants’ counsel as to what the order here in question is not. We agree that it is not a general regulation. What is determined by it is that the discharge оf sawdust from the defendants’ mill materially injures the fish in Konkapot River, and it orders the defendants to erect a blower, and forbids the defendants making a ‍‌​​‌​‌‌‌​​​‌​‌​​​​‌​‌​​‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌​​‌​‍pile of sawdust in connection with the mill; and it resulted in an order served on these defendants to do these acts. This is not a general regulation. But we do not agree that because it is not a general regulation it is a judicial action. The question to be decided here dоes not depend upon a choice between the two classes dealt with in *251Salem v. Eastern Railroad, 98 Mass. 431, and in Nelson v. State Board of Health, 186 Mass. 330, and for these reasons:

We are of opinion in the first place that it is within the power of the Legislature to protect and preserve edible fish in the rivers and brooks of the Commonwealth, and for that purpose, if they think proper, to forbid any sawdust being discharged into any brook containing such fish.

The right to run a sawmill on the bank of a brook or a river is, like all rights of property, subject to be regulated by the Legislature when the unrestrained exercise of it conflicts with other rights public or private. See Commonwealth v. Alger, 7 Cush. 53, 54; Rideout v. Knox, 148 Mass. 368. The defendants’ contention that they have a prescriptive right to discharge sawdust into the river (even if it kills or injures the fish therein) which prescriptive right cannot be taken away or impaired without compensation being made therefor, means this and nothing more: Where the Legislature, up to the passage of the act here in question, (St. 1890, c. 129,) had not regulated the business of sawing wood on the banks of streams having in them edible fish, and where, in the absence of such regulation, the defendаnts had discharged sawdust into the stream for thirty years, the people have lost the power to regulate the conflicting rights of sawmills on the bank of the stream and to preserve fish in the stream itself. The statement of the proposition is enough to show that there is nothing in it. The decision in Attorney General v. Revere Copper Co. 152 Mass. 444, relied on by the defendants, is confined to the gaining of prescriptive rights with respect to property owned by the public under a statutе of limitations which puts the property rights of the public on the same basis as those of individuals.

We are of opinion in the second place that in ease the Legislature thought that in regulating the conflicting rights of individuals to run sawmills on the banks of a river on the one hand, and of the public on the other hand to have fish live and increase in the same stream, it was not ‍‌​​‌​‌‌‌​​​‌​‌​​​​‌​‌​​‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌​​‌​‍worth while to forbid sawdust being discharged into every stream in which there were edible fish, they could leave to a board having peculiar knowledge on the subject the selection of the brooks and rivers in which the fish were of sufficient value to warrant the prohibition or rеgula*252tion of the discharge of sawdust. The right of the Legislature to delegate some legislative functions to State boards was considered by this court in Brodbine v. Revere, 182 Mass. 598.

And further, in case the Legislature thought that an act which forbade any sawdust to bé discharged into any of the streams selected by the board was an unnecessarily stringent one, they could in our opinion leave it to the board to settle in each particular case thе practical details required to harmonize best these two conflicting rights.

The power thus delegated to the board of fitting the details of regulation to the particular circumstances of each case is of the same character as that long exercised by the fish and game commissioners and their predecessors the board of inland fisheries in prescribing the details of the construction of the fishwаys to be constructed in dams where by law fishways have to be maintained. See St. 1866, c. 238, §§ 2, 6; St. 1867, c. 344; Pub. Sts. c. 91, § 4. See also Prov. St. 1745-46, c. 20 ; 3 Prov. Laws, (State ed.) 267. These acts provide that the boai’d, after, examination of dams upon rivеrs where the law requires fish-ways, is to determine whether the fishways in existence are sufficient and to prescribe by an order in writing what changes or repairs, if any, shall be made, and at what times the fishways are to be kept open, and to give notice thereof to the owners of such dams. The action of the fish commissioners under these acts is unquestionably legislative in character, and we cannot doubt that their aсtion under them, exercised and acquiesced in by the public for this length of time, is valid.

The result is that in our opinion the action of the board in the case at bar was the working out of details under a legislative act. The board is no more required to act on sworn evidence than is the Legislature itself, and no more than in case of the Legislature itself is it bound to act only after a hearing or to give a hearing .to the рlaintiff when he asks for one; and its action is final, as is the action of the Legislature in enacting a statute. And being legislative, it is plain that the questions of fact passed upon by the commissioners in adopting the рrovisions enacted by them cannot be tried over by the court. This court has been recently asked to try over the expediency of compulsory vaccination in an action under a statute requiring it. Com*253monwealth v. Jacobson, 183 Mass. 242. On its declining to do so an appeal was taken to the Supreme Court of ‍‌​​‌​‌‌‌​​​‌​‌​​​​‌​‌​​‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌​​‌​‍the United States, and its refusal to do so was held to be correct. Jacobson v. Massachusetts, 197 U. S. 11, see particularly p. 30. See also Devens, J. in Train v. Boston Disinfecting Co. 144 Mass. 523, 531.

The practical result is that the defendants are forbidden to conduct their sawmill as they had conducted it for thirty years, by a board who have not heard evidence and have refused the defendants a hearing; that the action of the board is final, and that no compensation is due to them.

This result may seem strange. But it is no less strange than the practical results in cases which are decided law. Take the case before the court in Nelson v. State Board of Health, 186 Mass. 330, namely, a farm on the banks of a pond used as the water supply of a town. The State board of health can pass a general regulation under § 113 of R. L. c. 75, forbidding privies within a specified distance from its shore, and if the defendant had had a privy there for thirty years his right to maintain it would cease although the order was made without hearing; and the action of the board is final. On the other hand, if the board had proceeded under § 118 to investigate this particular privy, the defendant would have been entitled to a hearing, and, on appeal, to a jury, as provided by § 119. Again, take for example the regulation of a local board of health in question in Train v. Boston Disinfecting Co. 144 Mass. 523, requiring all rags arriving at the port of Boston from any foreign port to be disinfected at the expense of the owner before being discharged. The power of the local board of health to declare thеse rags a nuisance per se, so as to impose upon the owner without trial the expense of disinfecting them, was established by this ‍‌​​‌​‌‌‌​​​‌​‌​​​​‌​‌​​‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌​​‌​‍court in that case. Had the local board undertaken to investigate the partiсular rags in question in Train v. Boston Disinfecting Co. under their jurisdiction to inquire into sources of filth, and they had been authorized under that act to abate the nuisance if they found the rags to be a nuisance, by ordering them to be disinfected at the еxpense of the defendant, they would have had to give the defendant a hearing on notice, and from their decision the defendant would have had a right to a trial by jury. That is what was decided in Salem v. Eastern Railroad, 98 Mass. 431.

*254That is to say, on the one hand where the law is general and the question is whether under it the defendants are committing a nuisance, the facts are determined by judicial action. On the other hand, the determination of the same facts is legislative in case the Legislature decides to make the thing a nuisance per se. And where it is legislative it is final and no hearing is necessary ; and where, as is the case here, it is made in the exercise of the pоlice power, no compensation is due. The delegation of such legislative powers to a board is going a great way. But the remedy is by application to the Legislature if a remedy should be given. In our opinion it is within its constitutional power, and the court can give no remedy.

For similar cases where the use which can be made of property has been left to the final determination of boards, see Newton v. Joyce, 166 Mass. 83; Commonwealth v. Roberts, 155 Mass. 281. See also in this connection Wares, petitioner, 161 Mass. 70. The difference between the majority ‍‌​​‌​‌‌‌​​​‌​‌​​​​‌​‌​​‌​‌​‌‌​‌​‌‌​​​​​​​‌‌‌​​‌​‍and the minority of the court in Miller v. Horton, 152 Mass. 540, was on the construction of the act there in question.

Exceptions overruled.