City of Taunton v. Taylor
| Decision Date | 09 November 1874 |
| Citation | 116 Mass. 254 |
| Parties | City of Taunton v. Addison Taylor |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
[Syllabus Material] [Syllabus Material] [Syllabus Material]
Bristol. Bill in equity in the name of the city of Taunton, and signed by Daniel L. Mitchell as mayor thereof, filed August 20, 1872, and containing the following allegations:
That by an ordinance of said city it is provided that "two members of the board of mayor and aldermen, and three members of the common council, are hereby constituted a board of health of the city of Taunton, with all the powers vested in boards of health by the general laws of the Commonwealth;" and that two members of the board of aldermen, and three members of the common council, named in the bill, constituted the board of health of Taunton for this year:
That on August 15, 1872, an order was passed by said board of health, and recorded in the records of the city, as follows: "Ordered, that the exercise of the trade or employment of preparing tripe, manufacturing neat's-foot oil, tallow, and glue stock, and the boiling and trying of bones, hoofs, heads, refuse and partially decayed animal matter, and, as a part of such trade or employment, the storing about the premises where such business is carried on of putrid meats, bones, heads, legs and the various other materials from which offensive smells emanate, which are used in such trade or employment, be and the same hereby is forbidden within the limits of the city of Taunton:"
That the defendant was carrying on in Taunton the trade or employment prohibited in said order, and on August 17 was served with a notice in writing, signed by all the members of the board of health, of the passage of the order, and that it would be enforced if not complied with within seven days; that on August 28 said board of health passed another order, instructing the city marshal to visit the defendant's manufactory and take such means as were necessary to enforce the former order of the board; and that the defendant declined to comply with the order of the board, and threatened to resist with force every attempt to enforce it.
The bill prayed for a subpoena, and an injunction to the defendant, his servants, workmen and agents, commanding them to desist and refrain from exercising, within the limits of the city of Taunton, the trade or employment set forth in the order of the board of health. Upon the filing of the bill a temporary injunction was granted.
The answer of the defendant contained a demurrer to the bill, because it did not appear thereby that the plaintiff corporation was a party to the suit, or entitled to the relief prayed for, or had any right in equity to proceed against the defendant as set forth in the bill; and also the following allegations:
"That the bill is brought without the authority or direction of the city of Taunton, or of the city council thereof, or of any person or persons duly authorized to act for the city of Taunton or the city council thereof, and that Daniel L. Mitchell had no authority to institute these proceedings in equity against this defendant, either as mayor of said city of Taunton, or as the agent of said city of Taunton, or as an individual citizen thereof, and that his signature to the bill is made without authority in law or equity:"
That the persons named in the bill were never appointed a board of health of the city of Taunton; and that the only board of health existing in the city of Taunton for the year 1872 was the city council of said city for that year:
That the order set forth in the bill was unreasonable, illegal and void; and that the board of health of the city of Taunton had no authority to pass or enact it:
That the defendant, believing and relying on the representations of the persons named that they were the legally appointed and constituted board of health of the city, did on September 12, 1872, appeal from said order, and applied to the Superior Court for a jury, which was duly empaneled, and on October 17, after a trial and a view of the premises, returned a verdict by which they "decided that the order of the board of health should be altered as follows: That Mr. A. Taylor, having selected a suitable locality within the limits of the city of Taunton, shall confer with the board of health after having obtained in writing the unanimous consent of the residents within a radius of one half a mile of the same;" and that the proceedings before the jury were null and void by reason of the verdict being unintelligible and plainly erroneous and beyond the authority of the jury, and by reason of the order of prohibition being unauthorized and void as before set forth:
That the trade or employment of preparing tripe, manufacturing neat's-foot oil, tallow and glue stock, and the boiling and trying of bones, hoofs and heads, were divers and distinct branches of business, and were none of them nuisances or hurtful to the inhabitants of the city of Taunton, or dangerous to the public health, or attended with noisome and injurious odors, or injurious to the estates of the citizens of Taunton, but contrariwise were necessary and useful branches of business; nor was the preparing of tripe or the manufacture of neat's-foot oil, tallow and glue stock, or the boiling and trying of bones, carried on by this defendant so as to be a nuisance, or hurtful, or dangerous, or injurious as above set forth.
The plaintiff filed a general replication. The parties afterwards agreed to submit the case to the court upon the bill and answer and a statement of facts in substance as follows:
On May 31, 1865, the city council of the city of Taunton passed an ordinance concerning the public health, which has ever since been and now is in force, the first section of which is as set forth in the bill. The city council for the municipal year 1872 adopted joint rules and orders providing that at the commencement of the municipal year, joint standing committees on several specified subjects should be appointed by the respective boards, unless otherwise ordered. One of the rules and orders of the mayor and aldermen is that "all committees shall be appointed by the mayor, unless the board otherwise determine." One of the rules and orders of the common council is that "all committees shall be appointed and announced by the president, unless otherwise provided for, or specially directed by the council." No committee relating to a board of health is mentioned in any of said rules and orders.
It is admitted, if the facts are competent as testimony, that every year since the year 1865 until the year 1872, and including the year 1872, the mayor of the city of Taunton has designated or appointed two persons, members of the board of aldermen of that year, and the president of the common council has designated or appointed three persons, members of the common council of that year, and that those five persons so designated or appointed have each year met together, organized themselves as a board of health of the city of Taunton, and performed duties such as are incidental to a board of health; and that in this way during the year 1872 the mayor and the president of the common council respectively designated or appointed the persons named in the bill, and that they met and organized as a board of health, and discharged the duties of the board of health of the city of Taunton for the year 1872. The plaintiff contends that they were legally appointed a board of health for the city of Taunton. The defendant denies that they were so legally appointed.
The verdict set out in the answer has been accepted by the Superior Court, and no further action has been taken by that court thereon.
It is further agreed that the rights of the parties, if they have any, to submit an issue of fact to a jury as to whether the business, as carried on by the...
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