32 A.2d 321 | N.H. | 1943
The rights affected by the regulations in question comprise rights which the plaintiffs are privileged to enjoy primarily as members of the public together with certain incidental rights which they possess as owners of lands bordering Pleasant Pond. Hoban v. Bucklin,
The fact that formal notice of the investigation conducted by the State Board of Health was not served upon the plaintiffs as riparian proprietors is unimportant. The statute contains no provision for notice other than a requirement for the posting or publication of the regulations made. P. L., c. 141, s. 15 (R. L., c. 166, s. 15). Boards of health act summarily, and it is the prevailing rule that they "need not give notice of hearing to any person before they can exercise their jurisdiction for the public welfare, unless the statute under which they are authorized to act expressly so requires." 25 Am. Jur. 315, and cases cited. *403
Notice was given, however, in the present case both by posting and by publication, and some of the plaintiffs appeared at the hearings and participated therein. While the stenographic reports of the two hearings are fragmentary, there is no deficiency in the official record of the action finally taken. The Board finds as a fact "that there is considerable swimming in the waters of Pleasant Pond and that said waters are in danger of contamination because of swimming and bathing therein; that a continuance of swimming and bathing therein will endanger the public health and that it is necessary for the protection of said water supply against pollution to prohibit swimming and bathing in said pond." On the basis of these facts, the Board adopted various rules and regulations including those to which the plaintiffs object.
The plaintiffs' contention that the Board erred in failing to grant certain requests for findings of fact and rulings of law is without merit. The plaintiffs were not entitled to a hearing as of right, and the Board could, if it saw fit, adopt a summary procedure. Furthermore, in the absence of a transcript of the testimony, no question relating to the sufficiency of the evidence to support the findings or regulations can properly be raised. Nelson v. Morse,
The fact that certain members of the Board who participated in the final deliberations did not hear all the testimony introduced at both hearings is immaterial. The Board "had a right to act upon its own inspection and knowledge," it "was not obliged to hear any party," and "could obtain its information from any source and in any way." People (ex rel. Copcutt) v. Board of Health,
In a proceeding for certiorari the scope of the inquiry is whether the fact-finding tribunal "has acted illegally in respect to jurisdiction, authority or observance of the law." Clouthier v. Board,
But the regulations cannot stand if they are "indisputably unreasonable" (Carter v. Craig,
The plaintiffs are, for the most part, owners of cottages which they occupy in summer for purposes of recreation. As such owners, they have "rights incidental to the enjoyment of public rights" in *404
Pleasant Pond "which are more extensive than those of one who is only a member of the public" (Hoban v. Bucklin,
The master found that the waters of Pleasant Pond were at times contaminated by the presence of colon bacilli and that these organisms were occasionally present "in lesser quantity" in the Pembroke water system. He further found that there were facts which justified the Board's conclusion "that said pollution would endanger public health," making the adoption of the regulations necessary. But he also found that these regulations were "not the only means which could have been adopted" as "a protection of said supply against pollution."
There was evidence to the effect that the bacteria present in the pond are largely "eliminated by natural self-purification due to the long period of storage which obtains in the pond"; that the lowering of the intake of the water system to the depth of twenty feet "would be an almost perfect safeguard against summer pollution," and that the cost of lowering the intake to that depth would be from $1,600 to $2,500; that chlorination "serves to render the water practically sterile" and that the cost of installing an automatic chlorination plant would be about $2,500, with an annual expense for maintenance and operation amounting to about $200.
In support of their contention that the regulations are arbitrary and unreasonable, the plaintiffs offered to prove that the market value of their properties before the restrictions on the use of the pond were imposed was approximately $70,000, but that, as a result of the action of the Board, the value was reduced from fifty to seventy-five per cent. Subject to the plaintiffs' exception, this evidence was excluded as immaterial.
Such exclusion constitutes reversible error. In passing upon the reasonableness of a statute, "the importance of the public benefit which the legislation seeks to promote is to be balanced against the seriousness of the restriction of private right sought to be imposed." *405
Dederick v. Smith,
Since the master declined to receive the proffered evidence and to "balance it on the scales of reasonableness" (Woolf v. Fuller, supra), his report must be set aside. The order is
New trial.
All concurred.