The town of Hudson, a manufacturing and residential town with a population exceeding eight thousand, maintains a system of water supply for its inhabitants, under the charge of three commissioners of public works." St. 1883, c. 149. St. 1909, c. 48. On January 31, 1942, at a special session of the General Court, a law was enacted for the declared purpose of protecting the public health during the existing state of war. St. 1942, c. 8. It read as.follows: “If the department of public health determines that, during the existence of the present state of war, it is necessary for a city, town, district or water company maintaining a water supply to provide equipment for such supply, including treatment equipment, or additions to existing equipment,-for the. protection of the public health, said department may order such city, town, district or company to provide such equipment or to make such additions to any existing equipment. The supreme judicial or the superior court shall have jurisdiction in equity to enforce any such order.”
On December 10, 1941, and on December 12, 1941, the department of public health had recommended to the commissioners of public works of Hudson that the water supply be guarded against sabotage, and that the water be chlorinated. At the annual town meeting held on March 2, 1942, it was voted to postpone indefinitely action on two articles in the warrant to provide for chlorinating the town water, and to appropriate money for that purpose. Thereby those articles were rejected. Wood v. Milton,
On October 7,1942, the Commonwealth, by the Attorney General, brought this bill against the town, its commis
There was agreement as to the material facts. The water supply of Hudson comes from a well isolated pond called Gates Pond situated in a wooded section of the town of Berlin. From that pond water flows by gravity into the water system. The town of Hudson owns all the watershed of the pond except for a frontage of five hundred feet. There is only one house in the watershed, and that is sufficiently removed from the pond so as not to be a source of pollution. The water has never been chlorinated or otherwise treated, and the water department has no equipment for treating it. It satisfies both State and Federal standards for drinking water, and is rated as very good. Since the outbreak of the war the metered domestic consumption has decreased about twelve million gallons a year to about sixty-nine million gallons, while the metered industrial consumption has increased about forty-two millions gallons a year to about ninety million gallons. Several industrial plants in Hudson are engaged in producing goods needed for the war, and a large number of their employees live in the town. The pond is being guarded constantly by one armed guard and two dogs. . The approved methods for
Upon these facts a judge of the Superior Court reserved the case for this court without decision. G. L. (Ter. Ed.) c. 214, § 31. Compare National Development Co. v. Gray, ante, 127.
The order of the department of public health, that the town “provide treatment equipment for chlorinating all water supplied to the town during the existence of the present state of war,” was within the authority given to the department by the statute. It was not necessary to give the town an option to purify the water in some other way. The department had authority to specify even more particularly than it did the kind and amount of equipment to be provided. In the nature of things it is doubtless impossible to treat drinking water and leave untreated water to be used for industrial purposes. For all that appears water for both purposes flows through the same pipes.
The constitutional rights of the town as the owner and proprietor of a business of supplying water (G. L. [Ter. Ed.] c. 40, §§ 38, 41; c. 44, § 8 (3); St. 1938, c. 172; St. 1941, c. 465; St. 1883, c. 149; Hand v. Brookline,
In sustaining a rule of the State board of health prohibiting fishing without a permit in waters used as a water supply, Rugg, C.J., said, “It requires no discussion to demonstrate that the preservation of the purity of the water supply for the domestic uses of the people is within the police power. The absolute prohibition of fishing upon such a source of supply could not be said to be unreasonable under the circumstances here disclosed.” Commonwealth v. Hyde,
The fact that the Legislature, instead of requiring chlorination by its own act, left the selection of the water systems requiring such treatment to the department of public health, does not give rise to any sound constitutional objection. It is true that the general power to legislate cannot be delegated. Brodbine v. Revere,
The order in question was plainly a valid exercise of the police power of the Commonwealth. Though made by the State department of. public health, it was made under, a valid delegation of power by the Legislature, and has the same force as though made by the Legislature itself. There was no constitutional need to give a hearing to the town. The Legislature was dealing- with an emergency affecting many water systems throughout the Commonwealth. .For the department to hold a hearing in each case would delay needed action and tend to defeat the purpose of the statute. The department did not act hastily. Four months before the order in question was made it had notified the town of the need of chlorination. The point made by the town that its water is naturally pure is beside the point. The department reasonably could find that the guard placed over the water supply could not insure against pollution by disease producing organisms introduced by enemy agents or sympathizers, and that chlorination would reduce the danger to public health if such pollution should take place. The
Now that the town has exhausted its legal remedies in opposing the order, and its duty to obey the order has been established in the courts, no lawful course remains open for the town, its officers and its voters, except prompt and complete obedience to the legislative mandate and to a judicial decree establishing the duty to obey that mandate. With the ordering of such a decree, our function normally would end. We do not ordinarily find it necessary to detail the measures that may be taken for the execution of a judgment or decree, or to point out the path that leads to the jail door. We commonly assume that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined. Decatur v. Auditor of Peabody,
We say more in the present case only because of a contention made by counsel for the defendant town which is without precedent in our experience. He contends that the power to appropriate money of the defendant town is vested exclusively in the voters at town meeting (Young v. West
That argument is so full of dangerous errors, and if relied on by the town and its officers and inhabitants might lead to such serious consequences to them, that we are unwilling by silence to permit counsel or his clients to remain under the delusion that a town may thus safely defy the Commonwealth and its courts. A town is not an independent sovereignty. It is merely a subordinate agency of State government. It is a creature of the Commonwealth, from which are derived all its powers and those of its voters and officers. Burnham v. Mayor & Aldermen of Beverly,
But the powers of a town and of its town meeting, and the very existence of the town, are subject to the will of the Legislature. Weymouth & Braintree Fire District v. County Commissioners of Norfolk,
Plainly a town is in no position to defy its creator, the Commonwealth, or to attempt to nullify legislative mandates issued under the authority of the General Court.
The statute (St. 1942, c. 8) expressly gives to two courts “jurisdiction in equity to enforce any such order.” The order was properly directed to the “town of Hudson” which was “maintaining” the water supply in question. A town is fully subject to the judicial power. Decrees in equity have often been made against towns. Courts have ordered towns as well as cities to perform affirmative acts. Frost v. Belmont,
In equity the traditional method of enforcing a decree is by a petition for attachment of the person for contempt. Root v. MacDonald,
On the other hand, such a contempt may be dealt with as “criminal” contempt, by a penal sentence of imprisonment or by a penal fine. Of course the fear of such punishment, like the fear of punishment for crime in general, may have a coercive effect. It may induce compliance with the decree. Where the duty to perform the decree continues, and performance remains possible, it is hard to see why repeated penalties may not be imposed for failure to obey during successive periods of time. See Commonwealth v. Connors,
Of course attachment of the person is impossible in the case of a municipality or other corporation. But like other corporations, a town or city may be fined for contempt in disobeying a decree. Marson v. Rochester, 112 App. Div. (N. Y.) 51, affirmed
Any person, whether lawyer or layman, though not a party to the cause, who counsels or aids a party in disobeying a decree, is himself punishable. Seaward v. Paterson, [1897] 1 Ch. 545. Chisolm v. Caines,
Officers of a town or city may be required to do all acts within their power to cause the municipality to obey a decree against it, and may be punished for failure to do so. Commissioners v. Sellew,
In “cases of extreme emergency involving the health or safety of persons or property,” two thirds of the selectmen may authorize the incurring of liability on behalf of a town in excess of appropriations. G. L. (Ter. Ed.) c. 44, § 31. We are not at all convinced that a refusal of the voters to appropriate money for compliance with the legislative order and the decree of the court in this case would not create such an emergency and give to the commissioners of public works and the selectmen a right and a duty to act. Continental Construction Co. v. Lawrence,
We make no attempt to list all the weapons in the ample armory of equity. We merely point out that courts of equity do not lack the means of doing their duty.
We still have a right to assume that upon sober second thought the town and its officers and inhabitants will not continue to defy the legislative mandate, but will obey the decree which will follow this decision. For that reason we shall not put forth at this time the full judicial power that might be brought into operation to compel obedience to that decree. It will be time enough to do that when it appears — if it ever does appear — that the town will not do its duty as that duty is now adjudicated. In that event, a bill to carry the decree into execution would lie, if needed, against such persons as the plaintiff might be advised to join with the town as defendants. Grew v. Breed,
For the present it seems sufficient to order the entry of a final decree that will (1) require the defendant town to pay costs to the plaintiff, (2) command the defendant town, and its commissioners of public works and all its officers, agents, servants and attorneys whose action may be required in order to cause the decree to be obeyed, forthwith to obey the order of the State department of public health set forth in the bill by providing and making ready for use at the expense of the defendant town chlorinating equipment sufficient to chlorinate all the water supplied by said town through its water supply system, and (3) command
Ordered accordingly.
Notes
For the distinction between so called civil and criminal contempts, compare Cherry v. Cherry,