Trowbridge v. Tupper

• Decision Date: 03 January 1912
• Citation: 96 N.E. 1096,210 Mass. 378
• Parties: TROWBRIDGBE et al. v. TUPPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 378

96 N.E. 1096

TROWBRIDGBE et al. v. TUPPER.

Supreme Judicial Court of Massachusetts, Worcester.

January 3, 1912

COUNSEL

E. H. Vaughan, City Sol., and Clifford S Anderson, Asst. City Sol., for plaintiffs.

C. E Tupper, for defendant.

OPINION

BRALEY J.

The appeal from the interlocutory order overruling the demurrer is not before us, as no final decree has been entered. Forbes v. Tuckerman, 115 Mass. 115, 118, 119; Fuller v. Chapin, 165 Mass. 1, 3, 42 N.E. 115. But as the exceptions cover in scope the question whether proof of the allegations of the bill as amended makes out a case for equitable relief, as well as the question whether the evidence warranted the decree ordered, the defendant to this extent has all the advantage which he could have derived from the appeal. Ontario Bank v. Root, 3 Paige (N. Y.) 478; Small v. Bondinot, 9 N. J. Eq. 381; Thompson v. Thompson, 1 Yerg. (Tenn.) 97.

The bill does not go upon the general equity jurisdiction of the court, to restrain the unlawful use of a building which creates a nuisance made punishable as a statutory or common-law misdemeanor. Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443. If it were so brought, the defendant's building not having as yet been used for an offensive purpose there would have to be adequate proof, that unless relief were given the threatened act sought to be enjoined would be so substantial in character, that the public health might suffer before effectual steps could be taken to stop its continuance, or to punish the wrongdoer. Atty. Gen. v. Metropolitan R. R., 125 Mass. 515, 516, 28 Am. Rep. 264; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N.W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421; Hamilton Brown Shoe Co. v. Saxey, 131 Mo. 212, 32 S.W. 1106, 52 Am. St. Rep. 622; In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. See 2 Dan. Ch. Pl. & Pr. (6th Am. Ed.) 1620, note a. But the provisions of the Rev. Laws, c. 102, § 69, which have been held to be constitutional, make it unlawful for any person to 'erect, occupy or use for a stable any building in a city whose population exceeds twenty-five thousand, unless such use is licensed by the board of health of said city, and in such case only to the extent so licensed.' Newton v. Joyce, 166 Mass. 83, 44 N.E. 116, 55 Am. St. Rep. 385. And by section 71, under which the bill is brought, a violation of these provisions is made a penal offense, while jurisdiction in equity is conferred upon the superior court 'to restrain such erection, occupation or use. * * *' The statute was designed to protect the health and comfort of the community, and should receive a construction which the plain meaning of the words imports. If there is reasonable certainty that a building is to be unlawfully occupied, and used for the stabling of horses, the public authorities need not delay action until the purpose of the owner, or those in control, has been accomplished, but may under section 71 prevent the attempted creation of a statutory nuisance, even if no actual injury to the public has been inflicted. Langmaid v. Reed, 159 Mass. 409, 411, 34 N.E. 593.

The evidence justified the finding of the judge, that it was the defendant's intention to occupy and use, as a stable for horses, the building which he had erected, and whether the board of health acted arbitrarily and unjustly in refusing him a license cannot be reviewed in these proceedings. White v. Kenney, 157 Mass. 12, 31 N.E. 654; Lowell v. Archambault, 189 Mass. 70, 75 N.E. 65. Nor was evidence of the excellent sanitary conditions of the building, or of its complete plumbing and appointments, and mode of construction, or that stables of other persons located in more densely populated sections of the city had been licensed admissible. The statute makes no distinction of this nature and if the board in the instances to which he referred had exhibited partiality, or want of sound judgment, the defendant was answerable only for his failure to comply with the law, to which their alleged delinquencies were no defense.

The evidence for the plaintiffs, however, and upon which the decision of the judge rests, was given by the complainant James G. Coffey. It is true, that while any statements by him either individually or as a member of the board exhibiting bias or prejudice against him would be collateral to the question of the defendant's intention to violate the statute, yet they would have been admissible to affect his credibility as a witness, and the weight to be given to his testimony. Day v. Stickney, 14 Allen, 255. But the exception to the exclusion of the question asked of the defendant in direct examination, if he had not been informed by Coffey that a license would not be granted because he had published articles, in the newspapers reflecting upon the refusal of the board to grant a license, was put upon the ground, that the offer was to show unjust discrimination. The evidence subsequently offered, that this witness had said to the defendant that he would not grant a...