Commonwealth v. Town of Hudson

• Decision Date: 29 December 1943
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. TOWN OF HUDSON & others.

315 Mass. 335

52 N.E.2d 566

COMMONWEALTH v. TOWN OF HUDSON & others.

Supreme Judicial Court of Massachusetts, Suffolk.

December 29, 1943

November 4, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Water. Public Health.

Municipal Corporations, Water Supply, Relation to Commonwealth Judicial power over municipality, Officers and agents Voters. Constitutional Law, Police power, Public health Delegation of powers, Political subdivisions. Contempt. Jurisdiction, Over municipality. Equity Jurisdiction, Municipality, Public health, Contempt. Equity Pleading and Practice, Appearance, Parties, Contempt proceeding, Decree.

A town, named as defendant in the bill in a suit in equity brought against it and certain of its officers, was before the court for entry of final decree where the town counsel purported to sign its name to the answer of some of the officers in addition to their names, followed by the words "by their attorney" and his signature as "town counsel," and later filed in this court a brief "for the respondents," signed by him as

"town counsel," which contained nothing to show that it was not filed for the town as well as for the other defendants.

An order by the department of public health in 1942 to a town maintaining a water system supplied with good, untreated drinking water from a pond,

"to provide" forthwith "treatment equipment for chlorinating all water supplied to the town during the existence of the present state of war," such order being based on the danger of pollution of the supply by sabotage, was within the authority conferred upon the department by St.

1942, c. 8.

St. 1942, c.

8, so far as it authorized the department of public health to order a town to provide, at the town's expense, equipment for chlorinating all water supplied through the town's water system "during the existence of the present state of war" in order to guard against the danger of pollution by sabotage, was a constitutional exercise of the police power in the interest of the public health.

Delegation by the Legislature, by St. 1942, c. 8, to the department of public health of the power to select, without a hearing, the water systems requiring the equipment specified in the statute was not unconstitutional.

A town is merely a creature of the Commonwealth, from which its existence and all its powers and those of its voters and officers are derived.

A town is fully subject to the judicial power; and there was no merit in a contention that a decree in equity ordering a town to take certain action involving expense to it would be futile and unenforceable and therefore should not be entered because the power of appropriating the town's money was exclusively in the voters at town meeting, who might refuse an appropriation to defray such expense.

Statement by LUMMUS, J., as to contempt proceedings and other means available to a court of equity to enforce a decree ordering a town to perform affirmative acts.

In a suit in equity against a town and some of its officers to enforce an order by the department of public health under St. 1942, c. 8, requiring the town to provide chlorinating equipment for its water supply, this court, holding the order valid, ordered the entry of a final decree, sufficient for the time being on the assumption that it would be obeyed, commanding the town, and all its officers, agents, servants and attorneys whose action might be required for obedience to the decree, to provide such equipment forthwith at the expense of the town and commanding the selectmen of the town forthwith to cause a town meeting to be held on a warrant suitable for action by the voters so to provide the equipment.

BILL IN EQUITY, filed in the Superior Court on October 7, 1942. The suit was reserved by Cabot, J., for determination by this court upon the pleadings and a statement of agreed facts.

M. A. Westgate, Assistant Attorney General, for the Commonwealth. A. G. Bonazzoli, Town Counsel, for the defendants.

LUMMUS, J. 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 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, 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, Section 1, Section 3 as appearing in St. 1939, c. 233, Section 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 existence 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.

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. Milton, 197 Mass. 531 , 533. 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 health."

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.

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 five hundred 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 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 millions 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 ultraviolet 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...