Tracht v. Cnty. Comm'rs of Worcester

• Decision Date: 07 November 1945
• Citation: 63 N.E.2d 561,318 Mass. 681
• Parties: TRACHT et al. v. COUNTY COMMISSIONERS OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 681

63 N.E.2d 561

TRACHT et al.

v.COUNTY COMMISSIONERS OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 7, 1945.

Certiorari proceeding by David Tracht and another against the County Commissioners of Worcester to quash proceedings of the respondent County Commissioners which resulted in a decree stating that the keeping of chickens by the petitioners in a building constituted a nuisance and ordering petitioners to abate the nuisance. From a judgment dismissing the petition for writ of certiorari, the petitioners appeal.

Affirmed.

Appeal from Superior Court, Worcester County; Buttrick, Judge.L. J. Gordon, of Springfield, for plaintiffs.

A. T. Saunders and P. L. Hinckley, both of Worcester, for defendants.

Before FIELD, C. J., and QUA, RONAN, WILKINS, and SPALDING, JJ.

RONAN, Justice.

This is an appeal by the petitioners under G.L.(Ter.Ed.) c. 213, § 1D, inserted by St. 1943, c. 374, § 4, from a judgment of the Superior Court dismissing their petition for a writ of certiorari seeking to quash proceedings of the respondents, the county commissioners of the county of Worcester, which purported to have been taken under G.L.(Ter.Ed.) c. 111, § 141, as appearing in St. 1937, c. 278, and which resulted in a decree stating that the keeping of chickens by the petitioners in a building upon their premises in North Brookfield constituted a nuisance, that the board of health of that town had neglected to pass all proper orders for the abatement of the nuisance, and that all notices required under the statute had been given, and ordering the petitioners to abate said nuisance within fifteen days.

One Paine, who claimed to be aggrieved by the action of the board of health which found that a nuisance existed upon the premises of the petitioners but failed to pass proper orders requiring them to abate the nuisance, applied to the respondents to eliminate this nuisance. This application was intended to be filed in accordance with G.L.(Ter.Ed.) c. 111, § 141, as appearing in St. 1937, c. 278. This action as amended permits one aggrieved by the neglect or refusal of a board of health to pass all proper orders abating a nuisance in accordance with any provision of G.L.(Ter.Ed.) c. 111, §§ 122-139, inclusive, to apply to the county commissioners, who shall hear and decide such application and shall in that respect possess all the powers of the board of health. The applicant shall, within a certain time after such neglect or refusal of the board of health to pass appropriate orders, file with said board a written notice to the adverse party of his intention so to apply to the county commissioners, and within seven days thereafter present a petition to one of the said commissioners stating his grievance and the action of the board of health thereon or the neglect or the refusal of the said board to act. It is to be noted that this procedure applies only where the matter alleged to require action by the board of health comes within some provision of §§ 122-139, inclusive, of c. 111. Section 122 of said chapter, in so far as material, provides that ‘The board of health shall examine into all nuisances, sources of filth and causes of sickness within its town * * * which may, in its opinion, be injurious to the public health, [and] shall destroy, remove or prevent the same as the case may require.’ The board under § 123 shall order the owner or occupant at his own expense to abate such nuisance within a time to be fixed by the board. Upon his failure to comply with the order, the owner or occupant by virtue of § 123 becomes liable to forfeit not more than $20 a day for every day during which he knowingly violates the order. By § 125 the board may abate the nuisance at the expense of the person responsible for the existence of the nuisance. The petitioners contend that the board of health was acting under G.L.(Ter.Ed.) c. 111, § 143, as appearing in St. 1933, c. 269, § 2. This section so appearing authorizes a board of health to ‘assign certain places for the exercise of any trade or employment which is a nuisance * * * and * * * prohibit the exercise thereof within the limits of the town or in places not so assigned, in any event.’ By § 144, if a place so assigned ‘becomes a nuisance * * * is otherwise hurtful or dangerous to the neighborhood or to travelers, the superior court may, on complaint of any person, revoke such assignment, prohibit such further use * * * and cause the nuisance to be removed or prevented.’ By § 145, ‘Whoever is injured in the comfort or enjoyment of his estate by such nuisance may recover in tort the damages sustained thereby.’ By § 147, ‘Whoever is aggrieved by an order made under section one hundred and forty-three * * * may, within three days after service of the order upon him, give written notice of appeal to the board, and file a petition for a jury in the Superior court * * * and, after notice to the board, may have a trial in the same manner as other civil cases are tried by jury.’

The difference between proceedings under § 122 et seq. and those under § 143 et seq. has been frequently pointed out and need not be restated. Commonwealth v. Young, 135 Mass. 526;Commonwealth v. Rawson, 183 Mass. 491, 67 N.E. 605;Belmont v. New England Brick Co., 190 Mass. 442, 77 N.E. 504;Kineen v. Lexington Board of Health, 214 Mass. 587, 102 N.E. 352.

The petitioners contend that the respondents had no jurisdiction to hear the application of Paine because the board of health was acting by virtue of said § 143 in determining whether a nuisance existed upon the premises of the petitioners and therefore the county commissioners had no authority to supersede the decision of the board of health or to substitute a new order for that made by the board, and further that, even if the board of health was acting under § 122, Paine having failed to file with the board of health a written notice to the petitioners of his intention to apply to the county commissioners before he presented his application to them, the latter lacked power to decide his application. There is no question but that, if the...