Sawyer v. State Board of Health

• Decision Date: 29 July 1878
• Citation: 125 Mass. 182
• Parties: George A. Sawyer v. State Board of Health
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 182

George A. Sawyer v. State Board of Health

Supreme Court of Massachusetts

July 29, 1878

May 4 1877 [Syllabus Material] [Syllabus Material]

Middlesex. Petition, filed May 12, 1876, to the Superior Court, alleging that on April 3, 1876, the petitioner was, and for seven years before had been, a butcher, and lawfully engaged in the business of slaughtering cattle and sheep on premises occupied by him in Watertown; that this business was not at any time a nuisance, or hurtful to the inhabitants of Watertown, or dangerous to the public health, and the exercise thereof was not at any time attended by noisome or injurious odors, and was not at any time otherwise injurious to the estates of the inhabitants of Watertown, or contrary to public comfort and convenience; that the state board of health, on said April 3, prohibited the exercise of the petitioner's trade and business on and after May 15, 1876, and caused to be served upon him, on April 14, 1876, a copy of their order of prohibition, as follows:

"Commonwealth of Massachusetts. State Board of Health. Boston, April 5, 1876. To George A. Sawyer, of the town of Watertown, in the county of Middlesex: You are hereby notified that at a meeting of the state board of health, held at Boston, in the county of Suffolk, on the third day of April, 1876, it was ordered, on the petition of W. H. Ingraham and four others, and after a hearing of the parties, that George A. Sawyer, of Watertown, be and he hereby is directed to discontinue the business of slaughtering and rendering on the premises now occupied by him, on and after the fifteenth day of May, 1876. And it is adjudged and determined by this board, that the premises are noxious and offensive, and that the public health and the public comfort and convenience require that the said George A. Sawyer be ordered, as aforesaid, to cease and desist from carrying on the said business on the said premises, on and after the fifteenth day of May, 1876. And you are hereby directed to comply in all respects with the requirements of the said order, under penalty of what may follow thereon."

The petitioner further alleged that he thereupon obeyed said order, and thenceforth desisted and refrained from the carrying on of his trade of butcher, and of slaughtering cattle and sheep, on the premises; and that "said order of prohibition was and is illegal and unjust, and that he is aggrieved thereby, and appeals hereby therefrom, and applies to the Superior Court, now in session in said county of Middlesex, for a jury to hear, pass upon and determine the questions determined by said state board of health in the premises, in issuing and serving said order of prohibition upon him, and that the jury may either alter or annui in full said order of prohibition, and that he may recover his just damages caused to him by service of said order of prohibition as aforesaid, and costs; and that the court may issue such order of notice in the premises to those who should be made respondents, as to said court shall seem meet."

On this petition, an order of notice was issued to the state board of health and the selectmen of Watertown. The board of health appeared, and filed a motion to dismiss the petition, for want of jurisdiction. The court sustained the motion, and ordered judgment for the respondent; and the petitioner appealed to this court.

Judgment affirmed.

G. A. Somerby & E. W. Washburne, for the petitioner.

W. C. Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the respondent. 1. There are no words in the St. of 1871, c. 167, or in any other statute, which can be construed to give an appeal.

2. The St. of 1871, c. 167, § 2, is constitutional, although no right of appeal to a jury is given. The Legislature might have made provision for an effectual enforcement of the common law, by providing for the appointment of an officer whose duty should be to order the owner of a building to desist from using it for a noxious trade, until it could be ascertained by a jury, on an appeal from that order, whether the use in question created a nuisance or not. Belcher v. Farrar, 8 Allen 325. Or the Legislature might have changed the common law in this regard, by prescribing a practical test for determining when a building used for a noxious trade was, and when it was not, a nuisance. Shaw, C. J., in Commonwealth v. Alger, 7 Cush. 53, 95, 96. Wells, J., in Lowell v. Boston, 111 Mass. 454, 464-467. The St. of 1871, c. 167, is an act of the second class; namely, a license law, to the effect that no building, in a city or town containing more than four thousand inhabitants, shall be used for a noxious trade; existing buildings so used are hereby licensed; other buildings may be licensed by the mayor and aldermen or by the selectmen; all licenses may be revoked by the state board of health. This construction of the statute is a reasonable one. The Gen. Sts. c. 26, §§ 52-60, provide for an effectual enforcement of the common law in this regard. The St. of 1871, c. 167, was designed to accomplish what was not accomplished by that act, and is therefore presumably a change of the common law. The provisions of the act are in substance, though not in form, those of a license law. Prohibiting the use of the building without the written consent of the selectmen, &c., is, in substance, prohibiting its use unless licensed by the selectmen, &c. Nightingale, petitioner, 11 Pick. 168. Declaring in a proviso that the terms of the section should not apply to existing buildings is in substance directly licensing those buildings; for a license is not the privilege of doing the act licensed, but is the privilege of being exempt from the operation of a law prohibiting the doing of that act. Calder v. Kurby, 5 Gray 597, 598. Commonwealth v. Brennan, 103 Mass. 70. Gibson, C. J., in Monongahela Navigation Co. v. Coons, 6 W. & S. 101, 112. Metropolitan Board v. Barrie, 34 N.Y. 657, 667. From 1836 (if not from 1710) to 1855, and in some cities and towns to 1860, a precisely similar license law was in force. The Rev. Sts. c. 21, § 47, authorized the selectmen to revoke any or all assignments, they might have made, of places for the exercise of noxious trades, and such revocations were not subject to be reviewed by a jury. The jury trial provided in § 48 gave the public a remedy by which an assignment could be revoked, in case the selectmen wrongfully omitted to revoke it. The first time that an owner was given an appeal, by which an order revoking the assignment of his place could be reviewed by a jury, was by the St. of 1855, c. 391, § 3. That act was originally in force in those cities and towns only which voted to adopt it, and was made obligatory throughout the Commonwealth by the Gen. Sts. c. 26. It is clear, therefore, that the Rev. Sts. c. 21, § 47, was a license law: if it was not, it was unconstitutional. The Prov. St. of 1710-11, (9 Anne) c. 8; 1 Prov. Laws, (State ed.) 656; and the St. of 1785, c. 1, must, it is submitted, be construed in the same way. The Rev. Sts. c. 21, profess to be nothing more than a reenactment of these statutes. So construed, the St. of 1871, c. 167, is constitutional. The Legislature can constitutionally make the action of its delegate, in revoking a license, final and not subject to be reviewed by a jury. A license is an exemption from the operation of a law; consequently, revoking a license is a legislative act; if the Legislature can delegate the power to do that act, it can make the action of the delegate final. The St. of 1875, c. 99, § 12, is an example of the action of the delegate being final, where a man is deprived of a beneficial use of his building and fixtures without a trial by jury. So are laws requiring a license where no license was required before. St. 1869, c. 415, § 12. Gen. Sts. c. 86, § 12. People v. Hawley, 3 Mich. 330. So are laws requiring yearly licenses. Sts. 1796, c. 88, § 5 1848, c. 270, § 2; 1839, c. 53; 1855, c. 121; 1845, c. 197, § 2 Rev. Sts. c. 47, § 1. St. 1832, c. 166. Commonwealth v. Blackington, 24 Pick. 352. The fact that the state board of health can act only after notice and hearing does not show that their action is judicial. The hearing was required to enable them to exercise a healthy discretion; but a legislative, not a judicial discretion. Crease v. Babcock, 23 Pick. 334, 344.

Lord, J. Morton, Endicott & Soule, JJ., absent.

OPINION

Lord, J.

The only question which has been submitted for a determination in this case is, Has the petitioner, under the statutes of this Commonwealth, a right to a trial by jury upon the question whether the exercise of his business is dangerous to the public health? It is contended by the petitioner that, if the St. of 1871, c. 167, applies to his building and trade, and deprives him of the right of appeal to a jury, it is unconstitutional. The respondent, on the other hand, contends that the statute is simply a license law, and can be sustained as a license law, even to the extent of preventing the petitioner from carrying on his business, within the constitutional exercise of legislative authority, although he has no right of trial by jury.

The important question at the outset, therefore, is, Did the Legislature intend that the order of the state board of health, passed under § 2, requiring the petitioner "to cease and desist from carrying on the said business on the said premises, on and after the fifteenth day of May 1876," should be absolute, final and irrevocable? This statute is to be expounded in view of all existing laws upon the same subject matter, and is, if consistent with proper rules of construction and interpretation, to be so construed as to be in harmony with the provisions of the Constitution of the...