Com. v. Packard

Citation185 Mass. 64,69 N.E. 1067
PartiesCOMMONWEALTH v. PACKARD.
Decision Date24 February 1904
CourtUnited States State Supreme Judicial Court of Massachusetts
COUNSEL

Asa P. French, for the Commonwealth.

C. C King, for defendant.

OPINION

BRALEY J.

A motion to quash the indictment was denied, and, after a verdict of guilty, the defendant brings his case to this court on exceptions to the order overruling his motion; to the refusal to admit the license in evidence, offered by him at the trial; to give certain rulings requested; and to the instructions under which the case was submitted to the jury. These questions, so far as they become material to out decision, may be considered in their order.

The motion to quash was rightly overruled, as the offense is described and pleaded with technical precision, and the indictment was sufficient in form. Com. v. Perry, 139 Mass. 198, 29 N.E. 656.

A more important question is presented by the exclusion of the license. By St. 1894, p. 446, c. 399, it was made a misdemeanor for any person to erect, occupy, or use a building for the 'storage, keeping manufacture, or refining, of crude petroleum, or any of its products,' in any city, or town, without a license therefor being first obtained from the mayor and aldermen, or the selectmen. I the exercise of the police power, the Legislature may pass such laws as are reasonable, for the regulation of the internal affairs of the state; and it is now well settled that by such enactments it can prohibit acts which at common law were not classed as noxious in themselves, because their existence did not constitute a nuisance. Rideout v. Knox, 148 Mass. 368-372, 19 N.E. 390, 2 L. R. A. 81, 12 Am. St. Rep 560; Quincy v. Kennard et al., 151 Mass. 563, 24 N.E. 860. It can also declare that acts which might be unlawful if carried to excess, by reason of their general tendency to annoy and injure others, may be lawfully done upon such conditions as it may prescribe. Sawyer v Davis, 136 Mass. 239-244, 49 Am. Rep. 27; Com. v. Parks, 155 Mass. 531, 30 N.E. 174; Northern Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336. 'A nuisance at common law may consist in the keeping or manufacturing of gunpowder, naphtha, or other explosive or inflammable substances, in such quantities and places, or in such manner, as to be dangerous to the persons and property of the neighborhood. * * * It may also consist in the carrying on of any trade or business in such a manner as to emit offensive odors and stenches, either injurious to the health of the public, or making the occupation of neighboring dwelling houses uncomfortable and disagreeable.' Com. v. Kidder, 107 Mass. 188-192. But if the legislative sanction is given to such acts, that otherwise would be deemed a nuisance, they cease to be such when properly exercised within the terms of the license which authorizes and permits them. Com. v. Boston, 97 Mass. 555; Badger v. Boston, 130 Mass. 170; Aldworth v. Lynn, 153 Mass. 53, 26 N.E. 229, 10 L. R. A. 210, 25 Am. St. Rep. 608; Bacon v. Boston, 154 Mass. 100, 28 N.E. 9; White v. Kenney, 157 Mass. 12, 13, 31 N.E. 654; Taft v. Com., 158 Mass. 526-547, 548, 33 N.E. 1046.

Where a nuisance of the kind described in the indictment affects the enjoyment of property or the health of an individual, or of comparatively a few persons in the community, it is said to be private in its nature, and the remedy of those injured is by an action for damages, or a bill in equity to enjoin its continuance. If, however, it is so general in its character, and the number of persons annoyed and injured are so large that the public generally are affected, an indictment lies against those by whom it is caused and maintained. President and Fellows of Harvard College v Stearns, 15 Bray, 1-5, and cases cited. In either case the act complained of is a nuisance, and whether it shall be deemed public or private may depend on the extent of the annoyance caused; and, if a license to carry it on is shown, a civil suit for damages or for an injunction cannot be maintained unless it appears that...

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1 cases
  • Commonwealth v. Packard
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1904
    ...185 Mass. 6469 N.E. 1067COMMONWEALTHv.PACKARD.Supreme Judicial Court of Massachusetts, Plymouth.Feb. 24, Exceptions from Superior Court, Plymouth County; Chas. U. Bell, Judge. Packard was indicted for keeping and maintaining a common nuisance, consisting of the storing of naphtha in large q......

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