State v. Griffin

• Decision Date: 12 March 1897
• Citation: 69 N.H. 1,39 A. 260
• Parties: STATE v. GRIFFIN.
• Court: New Hampshire Supreme Court

39 A. 260

69 N.H. 1

STATE

v. GRIFFIN.

Supreme Court of New Hampshire. Rockingham.

March 12, 1897.

Appeal from justice court, Rockingham county.

Willard H. Griffin was convicted of depositing sawdust in the source of a city water supply, and he appeals. Dismissed.

Defendant was convicted upon a complaint for depositing sawdust in Sucker brook, a tributary of Lake Massabesic. Facts agreed:

Lake Massabesic is the source of the water supply of the city of Manchester. There are several sawmills on or near the shore of the lake, all of which deposit sawdust in the water of the lake or of its tributaries. The effect of sawdust on the water is to give it a taste of wood, and to discolor it. As the process of decay goes on, the effect is to render the water unwholesome for drinking. But the water used in Manchester is taken from the lower end of the lake, and does not now show the effect of the sawdust which has been put into the lake and its tributaries to any extent that can be detected, except by chemical analysis. In 1881 the city of Manchester became the owner of a sawmill on Sucker brook, which had existed and been operated for more than 100 years. During all that period the sawdust created by it was deposited in the brook. The city, immediately after acquiring the title, leased the sawmill for 20 years to G. In the lease the city agreed that the lessee might "occupy said premises during said term, peaceably and free from the lawful claims of any persons claiming by, from, or under said lessor," and G. covenanted, among other things, that he would "not carry on, or suffer to be carried on, upon said premises, any trade, business, or occupation whereby or by reason of which the waters of the aforesaid brook shall be polluted or affected in any other or different ways from what they now are or heretofore have been." G. assigned the lease to the defendant, who has ever since operated the sawmill, and deposited the sawdust in the brook.

O. E. Branch, for appellant.

Drury & Peaslee and E. F. Jones, for the State.

CARPENTER, C. J. "If any person shall throw, place, leave, or cause to be thrown, placed, or left, any sawdust in Lake Massabesic, situated in Auburn and Manchester, or in any stream tributary thereto, he shall be punished for the first offense by a fine not exceeding $20, or by imprisonment not exceeding thirty days, or both; and for any subsequent offense by a fine of not exceeding $100, or by imprisonment not exceeding six months, or both." Laws 1891, c. 26, § 1. The complaint is founded upon this statute. The circumstance that the defendant holds the mill under a lease from the city of Manchester and the stipulations of the lease are immaterial. The city cannot exempt the defendant from the operation of the statute. The only defense is that the act is unconstitutional. The defendant claims that it is in conflict with the constitution for three distinct reasons, namely: Because (1) it deprives him of his property without compensation; (2) it is an exercise, not of legislative, but of judicial, power; and (3) it is not an equal and uniform law, applicable equally to all persons similarly situated, but operates only against those engaged in a particular business in a particular part of the state.

"It is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this com monwealth * * * is derived, directly or indirectly, from the government, and held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, 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 regulations 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. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well-ordered governments, and where its fitness is so obvious that all well-regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for contagious diseases, or for carrying on of noxious or offensive trades; to prohibit the raising of a dam, and causing stagnant water to spread over meadows near inhabited villages, thereby raising noxious exhalations, injurious to health and dangerous to life. Nor does the prohibition of the noxious use of property,—a prohibition imposed because such use would be injurious to the public,—although it may diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building, and cover it with shingles, he might obtain a larger profit of his land than if obliged to build of stone or brick with a slated roof. If the owner of a warehouse, in a cluster of other buildings, could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his building for a smallpox 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 tuo ut 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." Com. v. Alger, 7 Cush. 53, 84-86. The universal doctrine on the subject is nowhere more clearly stated than in the foregoing language of Chief Justice Shaw. It has been often applied, and never questioned, in this state.

In State v. Clark, 28 N. H. 176 (decided In 1854, when the keeping for sale of intoxicating liquor was not unlawful), it was held that a city ordinance adopted under legislative authority, prohibiting the keeping of liquors in "any refreshment room or restaurant for any purpose whatever," was constitutional. In State v. Noyes, 30 N. H. 279, it was held that the statute declaring a "bowling alley situate within twenty-five rods of any dwelling house, store, shop, school house, or place of public worship" to be a public nuisance (Laws 1845, c. 245), was constitutional, although it deprived the defendant of the use of a bowling alley lawfully built, if not put in operation, before the statute took effect. It was not suggested by the defendant's counsel that the act was invalid for the reason that the defendant was deprived of that use of his property without compensation. In State v. Freeman, 38 N. H. 426, a city ordinance prohibiting restaurants to be kept open after 10 o'clock at night was held valid. Bell, J., says (page 428): "It is an unavoidable consequence of city ordinances that they, in some degree, interfere with the unlimited exercise of private rights which were previously enjoyed. It is one thing to deprive a party of his rights, and quite another to regulate and restrain their exercise in such a manner as the common convenience and safety may require. If it is permissible to interfere in any way with the private right to carry on and manage his lawful business at such time and place and in such manner as suits himself, we are unable to see anything unreasonable in requiring places of public entertainment to be closed at seasonable hours. The guaranty of the constitution is just as effective to secure the citizen against the interference of the legislature as of the city council, and it has never been questioned that the legislature may constitutionally pass laws materially interfering with the business of individuals." In Morey v. Brown, 42 N. H. 373, an act providing that no one should be liable for killing a dog found without a collar, etc., was held constitutional. Bartlett, J., says (page 375): "The plaintiff claims that the act is in conflict with our constitution, but we do not think so. It is not, as he argues, an act to take private property for public uses, or to deprive parties of their property in dogs, but merely to regulate the use and keeping of such property in a manner that seemed to the legislature reasonable and expedient. It is a mere police regulation, such as we think the legislature might constitutionally establish." A statute prohibiting the sale of goods by any person outside his...