Commonwealth v. Town of Hudson

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: 52 N.E.2d 566,315 Mass. 335
• Parties: COMMONWEALTH v. TOWN OF HUDSON et al.
• Decision Date: 29 December 1943

315 Mass. 335
52 N.E.2d 566

COMMONWEALTH
v.
TOWN OF HUDSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 29, 1943.

Reservation from Superior Court, Suffolk County; C. C. Cabot, Judge.

Bill by the Commonwealth, by the Attorney General against the Town of Hudson and others to require defendants to provide treatment equipment for chlorinating the water supplied to the Town of Hudson as ordered by the Department of Public Health of the Commonwealth of Massachusetts. A judge of the Superior Court reserved the case for the Supreme Judicial Court without decision.

Decree in accordance with opinion.

[52 N.E.2d 568]

Before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

M. A. Westage, Asst. Atty. Gen., for plaintiff.

A. G. Bonazzoli, of Hudson, for defendants.

LUMMUS, Justice.

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

[52 N.E.2d 569]

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, Sp.Sess., 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.’

The department of public health, which consists of a commissioner of public health and a public health council of seven persons (G.L.(Ter.Ed.) c. 17, § 1; § 3, as appearing in St.1939, c. 233, § 1), sent a notice to the defendant town, dated April 10, 1942, signed ‘By order of the department of public health. Paul J. Jakmauh, M. D. Commissioner of Public Health,’ stating that ‘the department hereby determines that it is necessary for the town of Hudson to provide treatment equipment for chlorinating all water supplied to the town during the existance of the present state of war,’ and under the authority of the statute already quoted ordering ‘the town of Hudson to provide such chlorinating equipment forthwith.’ It is agreed that that notice constituted an order of the department of public health. See Commonwealth v. St. John, 261 Mass. 510, 521, 522, 159 N.E. 599.

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. Inhabitants of Milton, 197 Mass. 531, 533, 84 N.E. 332. After receiving on April 16, 1942, the order of the department of public health dated April 10, 1942, the commissioners of public works and the selectmen caused an article to be inserted in the warrant for a special town meeting as follows: ‘To see if the town will vote to authorize the commissioners of public works to install chlorinating equipment for the town's water supply as ordered by the State department of public health, or do or act anything thereon.’ At the special town meeting, held on April 29, 1942, it was voted ‘not to authorize the commissioners of public works to install chlorinating equipment for the town's water supply as ordered by the State department of public health9’

On October 7, 1942, the Commonwealth, by the Attorney General, brought this bill against the town, its commissioners of public works, and its selectmen, praying that they ‘be ordered forthwith to provide treatment equipment for chlorinating the water supplied to the town of Hudson, as ordered by the department of public health of the Commonwealth of Massachusetts.’ The individual defendants appeared and answered. The town did not appear nor answer except that the town counsel signed the name of the town to the answer of the commissioners of public works, to which he signed their names also, in each case ‘by their attorney,’ signing his name as ‘town counsel.’ A brief was filed in this court ‘for the respondents,’ signed by the ‘town counsel,’ which contained nothing to indicate that it was not filed on behalf of the town as well as the individual defendants. One point made was that no decree could be entered which would be enforceable against ‘the respondent inhabitants of the town of Hudson.’ We think that the town is a party defendant before this court. Compare Faulkner v. Lowell Trust Co., 285 Mass. 375, 377, 189 N.E. 215.

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 500 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

[52 N.E.2d 570]

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 million 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 purifying water are filtration, the ozone process, the ultra-violet ray process and chlorination. The last is the least expensive, and equipment for it is most easily obtainable. It is expected that the Federal government will issue priorities enabling the town to procure such equipment. The Commonwealth has offered its aid. The determination made by the department of public health was based wholly upon the danger of pollution of the water supply by ‘sabotage,’ which, we understand, means as applied to this case intentionally destructive or harmful acts committed by enemy agents or sympathizers.

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, Mass., 51 N.E.2d 960.

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. Inhabitants of Brookline, 126 Mass. 324;Opinion of the Justices, 150 Mass. 592, 597, 24 N.E. 1084,8 L.R.A. 487;Merrimack River Savings Bank v. Lowell, 152 Mass. 556, 26 N.E. 97,10 L.R.A. 122;Pearl v. Inhabitants of Revere, 219 Mass. 604, 107 N.E. 417;Horton v. Inhabitants of North Attleborough, 302 Mass. 137, 138, 19 N.E.2d 15;Adie v. Mayor of Holyoke, 303 Mass. 295, 300, 21 N.E.2d 377), cannot rise above those of a water company, privately owned, engaged in the same business. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583, 585, 99 N.E. 523, 42 L.R.A.,N.S., 215; Opinion of the Justices, 234 Mass. 612, 619, 127 N.E. 635. The preservation of the health and physical safety of the people is a purpose of prime importance in the exercise of the police power. Opinion of the Justices, 293 Mass. 589, 601, 199 N.E. 538;Liggett Drug Co., Inc., v. Board of License Commissioners of North Adams, 296 Mass. 41, 4 N.E.2d 628;McMurdo v. Getter, 298 Mass. 363, 366, 10 N.E.2d 139;Commonwealth v. Ferris, 305 Mass. 233, 237, 25 N.E.2d 378. See, also, arts. 47 and 49 of the Amendment to the Constitution.

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, 230 Mass. 6, 8, 118 N.E. 643, 644. See, also, Sprague v. Dorr, 185 Mass. 10, 69 N.E. 344;Loring v. Commissioner of Public Works of Boston, 264 Mass. 460, 464, 163 N.E. 82;Mechanics Savings Bank v. Collector of Taxes of Holyoke, 299 Mass. 404, 410, 12 N.E.2d 852. The fact that in the present case the evil to be avoided is one feared rather than one presently existing is no reason for denying...