Harrington v. Bd. of Aldermen of City of Providence

• Decision Date: 02 August 1897
• Citation: 20 R.I. 233,38 A. 1
• Parties: HARRINGTON et al. v. BOARD OF ALDERMEN OF CITY OF PROVIDENCE.
• Court: Rhode Island Supreme Court

38 A. 1

20 R.I. 233

HARRINGTON et al.

v. BOARD OF ALDERMEN OF CITY OF PROVIDENCE.

Supreme Court of Rhode Island.

Aug. 2, 1897.

Appeal from common pleas division, Providence county.

Action by board of aldermen of the city of Providence against Ruth M. Harrington and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Henry J. Spooner and Cooke & Angell, for appellants.

Francis Colwell and Albert A. Baker, for appellees.

ROGERS. J. The sole question in this case before the court at this time is as to the constitutionality of Pub. Laws R. L c. 777, of April 25, 1889, as amended by chapter 1407 of March 1, 1895, and which act, as amended, is as follows:

"Section 1. The board of aldermen of the city of Providence may compel any abutting owner or occupant of land upon any street in said city in which there is a sewer to connect the drainage of his land and premises with such sewer and may direct said owner or occupant to fill up and destroy any cesspool, privy-vault, or other arrangement for the reception of drainage.

"Sec. 2. Upon the service of any order or direction or a copy thereof upon any owner or occupant of such land to connect the drainage as aforesaid or to fill up or destroy, any cesspool, privy-vault, or other arrangement for the reception of drainage, such owner or occupant shall comply with such order or direction within ten days from the time of service of such order.

"See. 3. In case the owner or occupant to whom such order shall be directed shall neglect or refuse to comply therewith within ten days after the service thereof upon him, such owner or occupant shall be fined not less than five nor more than twenty dollars for each subsequent twenty-four hours during which he shall neglect or refuse to comply therewith, and in case such neglect or refusal shall continue for sixty days after the service of said order, said board of aldermen may cause any cesspool, privy-vault, or other arrangement for the reception of drainage upon the land of such owner or occupant to be filled up and destroyed, and the pendency of any appeal from any of such orders or doings of said board shall not affect the power of said board after the expiration of said period of sixty days to cause the same to be forthwith filled up and destroyed, the aforegoing provisions being in the interest of the public health of said city.

"Sec. 4. This act shall take effect from and after its passage and all acts and parts of acts inconsistent herewith are hereby repealed."

On August 1, 1895, the board of aldermen of the city of Providence passed the following resolution: "Resolved, that Ruth M. Harrington, wife of Wm. W., be, and she hereby is, ordered to connect the drainage of the land and premises situated on West Clifford street in this city, bounded and described as follows: * * * with the sewer in said West Clifford street, and that the said Ruth M. Harrington be, and she hereby is, directed to fill up and destroy any and all cesspools, privy vaults, or other arrangements for the reception of drainage on said premises, the said Ruth M. Harrington being the owner, occupant of said premises, within ten days from the time of service of this order, or of a copy thereof, upon said Ruth M. Harrington." August 3, 1895, a copy of said resolution or order was duly served upon Mrs. Harrington, and, an appeal from said proceedings of the board of aldermen having been taken by Mr. and Mrs. Harrington,—for both husband and wife joined in the appeal,—and, a claim for jury trial having been made, trial was had before the common pleas division, in which, upon the admissions of the appellants, a verdict was directed by the court ratifying and confirming the said order of the board of aldermen. At the jury trial it was admitted and agreed that Mrs. Harrington was the owner of the premises described; that there was a privy vault used for the reception of human excrements upon said premises; that West Clifford street was a sewered street; that said board of aldermen passed said order August 1, 1895; that said order was duly served on Mrs. Harrington August 3, 1895, and that before the making of said order Mrs. Harrington had no notice to appear before the board of aldermen, and show cause why said order should not be made against her in the premises, nor any opportunity for a hearing. The appellants claimed that said chapter 777, as amended by chapter 1407 of the Public Laws, was unconstitutional. They also claimed that, although there was a privy vault on said premises, used for the reception of human excrements, yet it was not used for the reception of drainage in the sense in which they claimed the word was intended in the statute; and they offered to prove that on August 1, 1895, and long prior thereto, said privy vault was not kept and maintained as a nuisance, but was kept in good order and condition, and so as not to be prejudicial to the public health; and also that the drainage of said premises was on and before August 1, 1895, and ever since, connected with the sewer on West Clifford street; the broad claim of the appellants being the right to put in evidence to the jury as to the condition of that privy vault and of the premises and surroundings, in order that the jury might determine (as it was contended that it should determine) that an order of the kind aforesaid should not be passed against the said Ruth M. Harrington. The presiding justice ruled said statute constitutional as required by law, ruled out the evidence offered by the appellants, and directed the jury, upon the admissions made, to find a verdict ratifying and confirming the said order; whereupon the constitutional question was duly certified to the appellate division for determination, and the appellants petitioned for a new trial for the alleged misrulings upon the evidence and upon ordering the verdict; but the question now before this division, as stated above, is solely upon the constitutionality of said statute, the whole travel of the case in the common pleas division having been given merely to elucidate the constitutional aspect of it.

The appellants claim that chapter 777, Pub. Laws, and chapter 1407, in amendment thereof, are unconstitutional, because no provision is made for notice to the owner or occupant of premises, and no opportunity for hearing thereon is given to the owner or occupant, before the passage of the order or direction by the board of aldermen, and because, also, by the provisions of section 3, c. 1407, the pendency of an appeal will not affect the power of the board to fill up and destroy the privy vault of such owner or occupant of the premises. This statute, "being in the interest of the public health of said city,"—to quote the concluding words of section 3 of it,—is clearly intended to be an exercise of what is called the "police power," and if it is a proper exercise of such power, both as to subject-matter and as to methods, then its constitutionality cannot be successfully impugned.

"Rights of property," says Chief Justice Shaw in Com. v. Alger, 7 Cush. 53, 85, "like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and limitations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain,—the right of a government to take and appropriate private property to public use, whenever the public exigency requires it,—which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power,—the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. * * * Nor does the prohibition of such noxious use of property—a prohibition imposed because such use would be injurious to the public, although it may diminish the profit of the owner—make it an appropriation to the public use, so as to entitle the owner to compensation. * * * If a landlord could let his building for a small-box hospital, or a slaughter house, he might obtain an increased rent But he is restrained; not because the public have occasion to make the like use, or to make any use, of the property, or to take any benefit or profit to themselves from it; but because it would be a noxious use, contrary to the maxim, 'Sic utere tuout alienum non lædas.' It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is, therefore, not within the principle of property taken under the right of eminent domain." In the words of Mr. Justice Harlan in the Slaughter House Cases, 16 Wall. 36, 62: "This power is. and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property." Chief Justice Redfield, in Thorpe v. Railroad Co., 27 Vt. 140, 149, 150, uses this language: "The police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state; * * * and persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state; of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be, made, so far as natural persons are...