Nelson v. State Board of Health

• Citation: 71 N.E. 693,186 Mass. 330
• Parties: NELSON v. STATE BOARD OF HEALTH.
• Decision Date: 01 July 1904
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 330

71 N.E. 693

NELSON v. STATE BOARD OF HEALTH.

Supreme Judicial Court of Massachusetts, Plymouth.

July, 1904.

COUNSEL

F. M Bixby and H. F. Parker, for appellant.

Ralph A. Stewart, Asst. Atty. Gen., for appellee.

OPINION

LORING J.

This is a petition by the owner of land bordering on Assawompsett Pond, which is a great pond. It the petition it is alleged that on December 5, 1901, the State Board of Health made certain rules, regulations, and orders, a copy of which is annexed to the petition, 'for the purpose of preventing the pollution and securing the sanitary protection of the waters' of that and another pond 'and their tributaries, used by the city of Taunton as sources of water supply'; that said rules, regulations, and orders were published on October 23, 1903; that the petitioner is aggrieved by said rules, regulations, and orders, and appeals therefrom; and that he brings this petition 'for a jury to hear, pass upon, and determine the questions determined by said State Board of Health in the premises in making issuing, and publishing said rules, regulations, and orders and that the jury may either alter or annul in full said rules, regulations, and orders; and that he may recover his just damages, caused to him by the making, issuing, and publishing of said rules, regulations, and orders and costs.' The paper annexed, although characterized in the petition as 'rules, regulations, and order,' is headed at the top, 'Rules Adopted by the State Board of Health.' Below is another heading: 'Rules and Regulations for the Purpose of Preventing the Pollution and Securing the Sanitary Protection of the Waters' of which we have already spoken. In the body of the instrument it is stated that: 'The State Board of Health, acting under the authority of section 1 of chapter 510, of the Acts of the year 1897, and every other act thereto enabling, hereby makes the following rules and regulations for the purpose of preventing the pollution and securing the sanitary protection of the waters of Elder's Pond and Assawompsett Pond and their tributaries, used by the City of Taunton as sources of water supply, which shall remain in force until further order.' Rule No. 1 forbids the maintenance of a privy, urinal, water-closet, or similar receptacle within 40 feet of high-water mark of the pond; rule 14 forbids any person bathing, boating, fishing, or putting any animal in the ponds; and rule 15 forbids the cutting of ice on the ponds. It is alleged by the petitioner that his land has been used as a farm for over 100 years; that he has various dwelling houses on his land, erected and let for summer dwellings, 'with necessary cesspools and outbuildings'; that 'his cattle have been accustomed to drink on the shore of the pond'; that 'he has been accustomed from time to time to boat and fish and bathe in * * * said pond, * * * and to go upon and cut the ice of said pond; * * * that said cesspools and outbuildings were situated at a sufficient distance from the shore of said pond so that the waters of said pond are not and have not at any time been polluted thereby; that the use of said land for summer dwellings and as a farm was not and has not at any time been a nuisance, and that the waters of said pond are not and have not at any time been polluted by such use of said premises; that the boating, fishing, bathing, going upon and cutting the ice and drawing of water in, upon, or from the waters of said pond and the watering of cattle in said pond were not a nuisance, nor has any one of said uses been a nuisance, and that neither of said uses nor all of them was a source of pollution or caused pollution to the waters of said pond.' The petitioner's contention is that he comes within section 4 of chapter 510, p. 539, of the Acts of 1897, which provides that 'any person aggrieved by an order passed under this act may appeal therefrom.'

The defendants' answer to this contention is that the rules and regulations were in fact made under section 1 of the act, as is stated by them in the rules themselves, and that the appeal to a jury given by section 4 is only from an order made under section 3 of that act. To this the petitioner's reply is that the language of section 4 is 'any order passed under this act,' and not any order passed under the next preceding section of the act, and that the authority given by section 1 is to make 'rules, regulations, and orders,' and not rules and regulations as distinguished from orders.

It is apparent from what has been stated as to the contentions on one side and the other that the act is not carefully drawn. We have, however, no doubt as to the construction of it. In our opinion, the construction put forward by the defendants is the true one. The time within which the appeal is to be applied for indicates, if it does not require, the adoption of that construction. The application for a jury is to be made 'within ten days from the service of such order upon' the person aggrieved. An order under section 3 must, by the provisions of that section, be served on the party against whom it is directed. But rules and regulations adopted under section 1 are not addressed to any one, but are to be published for the information of the public. See St 1899, p. 268, c. 308. But there is a decisive reason for this construction which goes even more to the substance of the whole matter. Since the Revised Statutes, town boards of health have been empowered to make 'such regulations as they may judge necessary for the public health and safety, respecting any articles which are capable of containing or conveying any infection or contagion, or of creating any sickness, when such articles shall be brought into or conveyed from their town, or into or from any vessel.' Rev. St. 1836, c. 21, § 6. These regulations are to be published in some newspaper in the town, or, where there is no newspaper, by posting them in some public place. Rev. St. 1836, c. 21, § 8. Rev. St. 1836, c. 21, §§ 6, 8, were both taken from St. 1816, pp. 262, 263, c. 44, §§ 5, 6, which then applied to the city of Boston only. See Com'rs' Report, Rev. St. note to chapter 21. The provisions of Rev. St. 1836, c. 21, § 6, were re-enacted in Gen. St. 1860, c. 26, § 5; Pub. St. 1882, c. 80, § 18; the provisions of Rev. St. 1836, c. 21, § 8, in Gen. St. 1860, c. 26, § 6, and Pub. St. 1882, c. 80, § 19. The character of the action of a town board of health, when it acts under these sections, was considered in ...