City of Newton v. Joyce

• Citation: 166 Mass. 83,44 N.E. 116
• Parties: CITY OF NEWTON v. JOYCE.
• Decision Date: 20 May 1896
• Court: United States State Supreme Judicial Court of Massachusetts

166 Mass. 83

44 N.E. 116

CITY OF NEWTON v. JOYCE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1896

COUNSEL

Samuel L. Powers, for appellant.

Winfield S. Slocum, City Sol., for appellee.

OPINION

LATHROP J.

This is a bill in equity, brought in the superior court, under St.1891, c. 220, § 4, to prevent, by injunction, the defendant from using and occupying certain premises in the city of Newton as a stable, for the keeping of more than four horses therein. The superior court issued a decree in accordance with the prayer of the bill, and the case comes before us on appeal.

Section 1, c. 220, St.1891, is as follows: "No person shall hereafter erect, occupy or use any building in any city for a stable for more than four horses unless first licensed so to do by the board of health of said city, and in such case only to the extent so licensed." It is not contended that the case comes within section 3 of the act, which provides "The foregoing provisions shall not be construed to prevent any such occupation and use authorized by law at the time of the passage of this act to the extent authorized at that time," as it does not appear that the defendant was licensed under any former statute. Pub.St. c. 102, § 39; St.1890, cc. 230, 395. The defendant contends that the statute of 1891 is unconstitutional, because it deprives him of the use of his property without any provision for compensation, and because it gives no right of appeal from the decision of the board of health on the question of whether or not a license should be granted; but we have no doubt that the statute in question is constitutional. It is an exercise of the police power of the commonwealth, and not of the right of eminent domain; and such an exercise of the police power is constitutional, although no provision is made for compensation to the owner, and no right of appeal is given from the local authorities, to whom the legislature has seen fit to intrust the determination of the question. Com. v. Alger, 7 Cush. 53, 85, 96; Com. v Colton, 8 Gray, 488; Com. v. Tewksbury, 11 Metc. (Mass.) 55, 57; Watertown v. Mayo, 109 Mass 315, 318; Bancroft v. Cambridge, 126 Mass. 438, 441; Com. v. Bearse, 132 Mass. 542; Train v Disinfecting Co., 144 Mass. 523, 530, 11 N.E. 929; Com. v. Roberts, 155 Mass. 281, 29 N.E. 522; White v. Kenney, 157 Mass. 12, 31 N.E. 654; Foster v. Kansas, 112 U.S. 201, 5 Sup.Ct. 8, 97; Mugler v. State of Kansas, 123 U.S. 623, 8 Sup.St. 273. In Langmaid v. Reed, 159 Mass. 409, 411, 34 N.E. 593, it was said by ...