Richardson v. Beattie
| Decision Date | 03 March 1953 |
| Parties | RICHARDSON et al. v. BEATTIE et al. |
| Court | New Hampshire Supreme Court |
Upton, Sanders & Upton, Concord, McLane, Davis, Carleton & Graf and Stanley M. Brown, Manchester (Frederick K. Upton, Concord and Brown orally) for plaintiffs.
Gordon M. Tiffany, Atty. Gen. and Maurice M. Blodgett, Deputy Atty. Gen., for defendants.
The issues involved require a determination of the authority granted to the State Board of Health by R.L. c. 166, §§ 14 and 15. Section 14 provides that 'Whenever [certain persons] have reason to believe that a public water * * * is being contaminated or is in danger of contamination, * * * they may petition the state board of health to investigate the case, and to establish such regulations as the board may deem necessary for the protection of the said supply against any pollution that in its judgment would endanger the public health'. Section 15 provides that 'The state board shall, upon such petition or its own motion, after due investigation, make such regulations as it may deem best to protect the said supply against any dangerous contamination'. The section also contains provisions concerning the time and method of putting into force any regulations made and establishes the duties of enforcement officers and their powers in relation thereto. These sections were first enacted by Laws of 1899, c. 57, §§ 1 and 2 in their present form, so far as this case is concerned except that in § 15, the words 'upon such petition or its own motion' were inserted in 1926 by P.L. c. 141, § 15.
The defendant take the view that each of these sections grants to the state board of health a separate authority to make regulations, § 14 permitting regulations aimed at the broad purpose of improving the quality of the water supply through provisions 'against any pollution that in its judgment would endanger * * * health' and § 15 limiting the authority to regulations deemed best by the board to provide protection 'against any dangerous contamination'. The two sections were adopted as a single act in 1899, and must be read together. Section 14 provides a method by which the powers conferred upon the board by section 15 may be invoked. The relief to be sough by such a petition is the establishment of regulations protecting against pollution or contamination which would, if allowed to continue, be dangerous to public health, § 14; and the authority granted to the board is confined to the promulgation of such regulations as will protect against such a threatened or existing danger. Section 15. The summary nature of the powers conferred upon the board has already been recognized by this Court. Willis v. Wilkins, 92 N.H. 400, 402, 32 A.2d 321. It may act without hearing and upon its own inspection and knowledge even if such action may seriously impair private as well as public rights. Such a power is designed for use in meeting the need for immediate action in protecting the public health. The board's authority to use this power is contingent upon the existence of dangerous contamination of the supply or the threat thereof. Conway v. New Hampshire Water Resources Board, 89 N.H. 346, 349, 199 A. 83, cited by the defendants in support of their claim of a broad grant of authority to the board of health did not involve the statute now in question.
By its motion to dismiss at the close of the plaintiffs' case, the defendants raised the issue of the nature and extent of the trial court's review of action taken by the board of health. In the case at bar, the board presumably acted upon its own investigation. It held no hearings and made no findings of fact. In the proceedings before the trial court the regulation standing alone was in issue, the plaintiffs having challenged its reasonableness. The defendants assert that within the permitted area of review limited to the question of reasonableness of the regulation, the trial court is not authorized to find facts but merely to determine whether, on the basis of evidence presented before the court, the board reached a conclusion which could be found to have some basis for its support. Such a limitation would require that with the introduction of any believable evidence in support of it, the regulation must be upheld without regard to probabilities, reasonableness or invasion of private rights.
The argument misconceives the nature of the administrative action under review. In adopting the regulations, the board was not called upon to act in a judicial capacity, and its reviewable proceedings consist of the regulation alone. It could, and did, act without notice or hearing. Willis v. Wilkins, 92 N.H. 400, 32 A.2d 321. It made no findings, and its action represented only an ex parte determination that the circumstances required protective measures of the sort authorized by the legislature. Having concluded that they did, it made such regulations as it deemed 'best to protect the * * * supply against * * * dangerous contamination'. Section 15.
Whether or not dangerous contamination existed or was threatened, is a question of fact. Whether the regulations adopted were reasonable in the light of the facts is a question of law which the plaintiffs are entitled to have judicially determined. Individual rights should not be overridden without judicial review. Those of the plaintiffs who are owners of cottages on the shore of Back Pond and who use the Pond for recreational purposes have 'rights incidental to the enjoyment of public rights * * * which are more extensive than those of one who is only a member of the public'. Hoban v. Bucklin, 88 N.H. 73, 87, 88, 184 A. 362, 186 A. 8, 11. In passing upon the reasonableness of legislation, whether a statute, Dederick v. Smith, 88 N.H. 63, 68, 184 A. 595, a municipal ordinance, State v. Paille, 90 N.H. 347. 352, 9 A.2d 663, or a regulation promulgated under legislative authority, Willis v. Wilkins, 92 N.H. 400, 405, 32 A.2d 321 and cases cited, the court is required to balance the importance of the public benefit which is sought to be promoted against the seriousness of the restriction of private...
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