Vermont Woolen Corp. v. Wackerman

• Decision Date: 06 January 1961
• Docket Number: No. 1902,1902
• Citation: 122 Vt. 219,167 A.2d 533
• Parties: VERMONT WOOLEN CORPORATION v. John J. WACKERMAN et al.
• Court: Vermont Supreme Court

Page 533

167 A.2d 533

122 Vt. 219

VERMONT WOOLEN CORPORATION v. John J. WACKERMAN et al.

No. 1902.

Supreme Court of Vermont.

Jan. 6, 1961.

Monti & Free, Barre, for plaintiff.

Louis P. Peck, Legal Asst. to Atty. Gen., Montpelier, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

The Vermont State Water Conservation Board on December 12, 1957, held a hearing in connection with classification of the waters of a certain Kingsbury Branch watercourse as authorized by 10 V.S.A. §§ 905 and 907. The plaintiff corporation, a riparian property owner and user of the waters of Kingsbury Branch in its operations, was notified of the hearing and appeared, objecting to the proposed classification. Thereafter, plaintiff received in the mail an order from the board defining the present condition of Kingsbury Branch as below Class D and setting up a classification to be reached by pollution abatement of Class C. This order contained the following provision relating to abatement of pollution:

'Note No. 3--Private sewer systems to receive proper disposal by septic banks and leaching lines or other approved means by 1 January 1959, Municipal sewage systems--plans and specifications shall be prepared and submitted to the Water Conservation Board for approval by 1 January 1959. Industrial wastes systems--plans and specifications for treatment facilities to be submitted to the Water Conservation Board by 1 January 1959 or alternate disposal of wastes not involving discharge to watercourse in operation by same date. Gravel washing plants shall have adequate settling lagoons prior to 1958 operations. Stream bank dumps to be abandoned and cleaned up or covered in an approved manner by 1 January 1959.'

Kingsbury Branch is a tributary of the Winooski River, which in turn empties into Lake Champlain.

Within thirty days of the issuance of the order, in accordance with the appeal procedure set out in 10 V.S.A. § 908, the plaintiff brought an action in chancery alleging itself aggrieved by the classification order.

At the hearing before the chancellor no evidence was taken. The parties seem to have sought to raise the issues of the constitutionality of the statutory authority under which the board acted and the constitutionality of the actions of the board. To this end the board agreed to allow the chancellor to treat the allegations of the bill as true for the purpose of such a test, with the reservation that the board was to be allowed to plead over in the event the ruling of the chancellor was reversed in this Court. The chancellor, after getting the parties to agree to the questions to be presented, incorporated them in an order dismissing the bill for failing to set forth grounds of equitable relief. Were it not for the entry of judgment this would appear to be a discretionary certification of questions to this Court prior to final judgment under 12 V.S.A. § 2386. It now stands in effect on an appeal from a judgment sustaining a demurrer to the bill, a situation apparently not entirely in accordance with the intentions of the parties. In other circumstances this might have prevented review of the very questions sought to be raised. Perhaps it is not of great moment in this case, but we point these things out in order to urge counsel to follow orderly procedure in presenting their questions for review where circumstances permit, in order to avoid the risk of having an appeal fail to reach the issues vital to the controversy.

The order of the board sought to be vacated by these chancery proceedings directly affects the plaintiff. It is, therefore, a proper party to raise the question of the constitutionality of the legislation involved and of the actions of the board. See Clark v. City of Burlington, 101 Vt. 391, 412, 143 A. 677; State v. Haskell, 84 Vt. 429, 441, 79 A. 852, 34 L.R.A., N.S., 286.

In 10 V.S.A § 902 are defined, in terms of purity, the various water classifications used in the statutes relating to water pollution. By the language of the definitions Class D is water so polluted as to fail as a habitat for wildlife and common food and game fishes indigenous to the region; waters polluted beyond a Class D status contain sewage or industrial waste to the point of nuisance. Class D waters are so impure as to be unsuitable for irrigation of crops or other agricultural uses. Class C, while a suitable habitat for fish and wildlife, is too polluted for recreational bathing or for public water supply even with filtration and disinfection. Its only acceptable agricultural use is for irrigation of crops that are cooked prior to consumption. Class B is free enough of pollution to allow its use for bathing and aquatic recreation, for general irrigation and agricultural purposes and, with filtration and disinfection, for public water supply. Class A is water so free from any pollution as to be suitable for all purposes including public water supply.

The legislature itself has determined the classification of certain waters by the provisions of 10 V.S.A. § 903. All waters used as public reservoirs and waters flowing into them are Class A. Natural lakes and ponds of twenty acres or more wholly within the state and the waters flowing into them shall be Class B, unless such classification is objected to by ten property owners on such a pond or lake, in which case the board may, after hearing, classify it differently. The statute goes on to make classification of the remaining waters of the state, including determination of what degree of purity ought to apply and be maintained, the function of the water conservation board. 10 V.S.A. § 901 defines 'pollution' as 'the placing in the waters of the state by whatever means of any noxious or deleterious substance which renders such waters harmful to animal or aquatic life, or to use for industrial purposes or for recreation.'

The plaintiff attacks the constitutionality of these water pollution statutes on several grounds. In the first instance, it is asserted that since the board is directed merely to furnish notice of a proposed restriction of a river or stream 'using whatever means it deems proper' (10 V.S.A. § 907) the possibility of inadequate notice being permissible under this language renders the act unconstitutional. No. claim of lack of proper notice in this particular case is made.

A legislative enactment has the benefit of every presumption in favor of constitutionality, including the selection of a constitutional construction, if reasonable, over an unconstitutional one. Elliott v. State Fish and Game Commission, 117 Vt. 61, 68, 84 A.2d 588. The burden of producing clear and indisputable proof rests on one alleging unconstitutionality. State v. Auclair, 110 Vt. 147, 156, 4 A.2d 107.

Notice is a vital essential in any proceeding having the aspects of an adjudication. Thompson v. Smith, 119 Vt. 488, 507, 129 A.2d 638. However, entire lack of notice is not the issue raised here, since the use of the compelling directive 'shall furnish notice' in 10 V.S.A. § 907 requires the board to provide notification. The plaintiff contends that there is no guarantee of reasonable notice in the statute. This position requires the unwarranted assumption that the legislature intended to authorize unreasonable notice when only reasonable notice has legal effect. Nichols Electric Co., Inc. v. Fienberg, 101 Vt. 99, 103, 141 A. 679. Proper construction of the statute qualifies 'notice' with 'reasonable'. Sabre v. Rutland R. R. Co., 86 Vt. 347, 366, 85 A. 693. Even though the actual notice given by the board in a particular instance may be open to challenge on review, this Court will not strike down a statute as unconstitutional for failing to spell out in words a fundamental requirement of due process implicit in a meaningful use of the word 'notice.' To do so would violate the very rule of construction set out in Elliott v. State Fish and Game Commission, supra, 117 Vt. 61, 68, 84 A.2d 588.

The legislation in question here is concerned with promoting the public welfare (10 V.S.A. § 915) by providing the maximum of beneficial use and enjoyment of the waters of the state to its people. 10 V.S.A. § 903(3). Reference to the classifications of water purity previously described demonstrate that pollution abatement is to be carried out in furtherance of public health and for the protection of fish and game. Both of these purposes have already been recognized as areas appropriate for the exercise of the police power. See State v. Quattropani, 99 Vt. 360, 133 A. 352; and State v. Theriault, 70 Vt. 617, 41 A. 1030, 43 L.R.A. 290.

As is said in the Quattropani case, the police power is not limitless, even though it be but another name for sovereignty itself. It is subject to judicial review to test the reasonableness and appropriateness of the legislation to accomplish the result intended without oppression or discrimination. State v. Morse, 84 Vt. 387, 394, 80 A. 189, 34 L.R.A.,N.S., 190. Except for this limitation, it is for the legislature to determine what measures are appropriate and necessary to conserve and safeguard the public safety, health and welfare. State v. Quattropani, supra, 99 Vt. 360, 363, 133 A. 352. As that case states, all contracts entered into, all charters granted, all rights possessed and all property held are subject to the proper exercise of this police power, and must submit to its valid regulations and restrictions. The determination of validity is the function of the courts.

The specific objective is to require those who contribute to pollution in our streams to take steps to reduce or bring to an end such pollution as they may be responsible for. Nothing brought forward by the plaintiff disputes the clear and reasonable relationship of the statutory program in question to the legislative objectives. Nor has there been a demonstration of an infringement upon constitutional rights by the requirements of the...