Wheeler v. City of Boston

• Decision Date: 25 June 1919
• Citation: 233 Mass. 275,123 N.E. 684
• Parties: WHEELER v. CITY OF BOSTON et al. KIMBALL v. WOODWARD, Health Com'r, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 275

123 N.E. 684

WHEELER

v.CITY OF BOSTON et al.

KIMBALL

v.WOODWARD, Health Com'r, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 25, 1919.

Report from Supreme Judicial Court, Suffolk County.

Petitioners for writs of mandamus by Joseph Wheeler against the City of Boston and others and by James F. Kimball against Francis X. Mahoney (by amendment, William C. Woodward), Health Commissioner, and others. Cases reported, and ordered consolidated. Petitions dismissed.

C. P. Sampson and Clarence F. Eldredge, both of Boston, for petitioners.

John A. Sullivan, of Boston, for respondent Boston Development & Sanitary Co.

Joseph P. Lyons, of Boston, for respondents Sullivan and Woodward.

RUGG, C. J.

These are petitions for writs of mandamus. They are brought to compel the appropriate public officers of the city of Boston to grant and approve permits to the petitioners, who are farmers doing business in neighboring towns, to convey garbage through the streets of Boston on its way to their farms, there to be fed to swine. The pertinent facts are, that the petitioners have for the collection and transportation of garbage modern and sanitary appliances, which are kept clean and wholesome, and that they have been accustomed for several years to do this work in a careful and entirely satisfactory manner without offense to the senses or harm to the health of the community. They have made mutually advantageous arrangements for the collection of their garbage with the proprietors of certain large hotels and restaurants in Boston, who desire to have the petitioners continue to do this work. The petitioners have been granted permits from the municipal officers of Boston for several years. Their methods in the use of the permits have always been approved by the health authorities. In 1912 the city of Boston made a contract with the Boston Development & Sanitary Company, one of the defendants, wherein it agreed to collect garbage from the part of Boston wherein are located the hotels and restaurants from which the petitioners have been collecting garbage, and to deliver it to that company at designated stations. This contract is still in force. In 1914 the city of Boston made a contract with the same company for the collection of hotel and restaurant garbage within the same area. That company has a reduction plant at Spectacle Island in Boston Harbor and declines to permit the petitioners to collect garbage under its patronage.

By R. L. c. 25, § 14, a city may make contracts ‘for the disposal of its garbage.’ R. L. c. 26, § 2; Clarke v. Fall River, 219 Mass. 580, 583, 107 N. E. 419.

It is provided by the Revised Ordinances of Boston of 1914, c. 40, § 14, that--

‘No person other than employés of the city * * * shall in any street carry * * * house offal or other refuse matter * * * except in accordance with a permit from the commissioner of public works approved by the board of health.’

In 1914 the board of health of Boston passed this regulation:

‘At a meeting of the board of health held this day, it was voted to adopt the following regulations: Whereas, kitchen swill and garbage in the city of Boston are a source of filth and are capable of containing and of conveying contagion and of creating sickness, thereby endangering the public health and safety; and, whereas, in the opinion of the board, municipal collection and removal of the entire mass of kitchen swill and garbage in the city of Boston is necessary to preserve the public health and safety: Ordered, that no person, firm or corporation, other than the city of Boston or the city contractors or their agents, shall carry, convey or transport through the alleys, streets or public places of the city of Boston any kitchen swill or garbage consisting of any refuse accumulation of meat, fish, fowl, fruit or vegetable matter.’

This regulation was adopted for the reasons therein set forth as a health measure, because of difficulty experienced in placing responsibility for nuisances created by failure of persons theretofore holding permits, other than the petitioners, to collect garbage regularly and in a sanitary manner, but who were irregular, slovenly and offensive in their methods. After the passage of this regulation the commissioner of public works refused to issue permits to the petitioners, not because they did not or were not able to comply with all proper rules respecting the collection of garbage, and not because of any complaint against their methods, but because he refused longer to issue any permits to any such persons. The board of health refuses to act in behalf of the petitioners. No permits to transport garbage through the streets of Boston have been granted since the adoption of the regulation by the board of health. The situation as summarized by the auditor is this:

‘There is little controversy as to the facts. The city, having the responsibility of removing or causing to be removed offal and garbage that may be a menace to the public health, has adopted a system both of removal and disposal, employing as its agencies its own employés, its contractors, and the Boston Development & Sanitary Company, and as its agent for disposal it has adopted the Boston Development & Sanitary Company, under a contract. In order to carry out and make effective its policy, it has undertaken to refuse permission to anybody except one of its own agencies to transport garbage through the streets. The Boston Development & Sanitary Company has erected a large reduction plant on Spectacle Island, and furnished scows for the transportation of garbage from the water-front stations to the Island. At the Island it treats all the garbage by a ‘reduction’ process, and extracts from it grease, oil, and other products of commercial value. The garbage is therefore of value to it.'

There is nothing in the record which requires the inference that there is any bad faith in any of the conduct of the city officers. The natural import of all the facts is that the regulation has been passed and enforced in an honest effort to conserve the public health and promote the general welfare.

The petitioners denounce the action of the commissioner of public works and of the board of health in refusing to grant them permits as unreasonable, and the enforcement of the regulation of the board of health as an unauthorized exercise of the police power.

The regulation of the board of health was passed under the authority conferred by R. L. c. 75, § 65, which requires 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...