Inhabitants of Winthrop v. Farrar , 93 Mass. 398 ( 1865 )

Bigelow, C. J.^*

1. The amendment to the bill was rightly allowed.

2. The notice to the defendant of the order of the board of health was duly served.

3. If the defendant can prove the allegations in his answer concerning the conduct of the board of health, and their intention thereby to put him in a position to prevent his availing himself of his right to appeal, and that by reason thereof he lost his opportunity to appeal, this court will refuse to enforce the order of the board of health by a process in equity. The case is to stand for hearing on this point. After the facts are ascertained and the whole case is before us on the evidence, we shall be able intelligently to determine whether the plaintiffs are entitled to ask for the interference of this court in equity, peremptorily to restrain the defendant from the prosecution of his business.

After the above decision, voluminous testimony was taken, upon which the case was again reserved for the determination of the whole court, and was argued in November 1865. The facts found are stated in the opinion.

Hoah, J.

This cause has been before us twice already, and is. now presented and has been fully heard, upon bill, answer, replication and proofs. It was decided upon the first argument that the order of the board of selectmen of the town of Winthrop, acting as a board of health, which prohibited the manufacture of kerosene or other oils within the town as a nuisance dangerous to the public health, was a valid and legal order under Gen. Sts. c. 26, § 52, and binding upon the defendant, although passed without any previous • notice to him. 8 Allen, 320.

The cause was then set down for hearing upon the bill, answer, replication and proofs; an amendment of the bill was allowed; and it was reserved for the whole court by the justice who heard it, upon rulings upon points of law which precluded the consideration of most of the evidence offered by the defendant. After argument, it was decided, 1. That the amendment to the bill was rightfully allowed; 2. That the notice to the defendant of the order of the board of health was duly served; and 3. That if the defendant could prove the allegations in his answer concerning the conduct of the board of health, and their intention thereby to put him in a position to prevent his availing himself of his right of appeal, and that by reason thereof he lost his opportunity to appeal, this court would refuse to enforce the order of the board of health by a process in equity. And the case was ordered to stand for hearing upon this last point.

A full hearing was again had before a justice of this court, and the case w.as again reserved for the whole court, for a final disposal of it.

We do not find it established by the evidence that the board of health had any intention to mislead the defendant, or deprive him of his right of appeal. They appear to have acted with regularity, good faith, and in strict compliance with the requirements of law. The order which they passed on the 29th of Slay 1862 was duly served upon the defendant on the 7th of June following, and nothing has been done by which it has since been modified, superseded or annulled. It remains, therefore, a valid and binding order, and the defence has failed upon the point on which the case was sent to a new hearing.

But a question has been argued upon the equity of the bill, as it stands for a final decree, which deserves careful consideration. It was suggested at the former argument, but was not passed upon by the court, for the reason that it could not be fully presented and understood until the whole evidence was heard.

Upon the final hearing it is now' made to appear that the defendant was actually mistaken in regard to his right to appeal from the order of the board of health, and lost his appeal by reason of that mistake. His counsel, upon whose advice be relied, was under the same misapprehension.

We think it apparent that the board of health, when they gave the defendant notice of the petition for a new order, and proceeded to a hearing under it, were themselves in doubt of the validity of their first order, and of its obligation upon the defendant, from the want of previous notice to him. The statute under which they acted was of a very stringent nature, and had not received judicial construction. The consequences are very serious, involving the entire destruction of the defendant’s business. He omitted to appeal, because he and his counsel understood that the purpose and effect of proceeding upon the petition for a new order was a rescinding of the order already passed.

Under these circumstances, the question arises whether the extraordinary powers of a court of equity can be properly invoked, to enforce against the defendant by injunction the highly penal consequences of his error; and we are all of opinion that it is not a case which calls for their exercise.

The only adjudication that the defendant’s works were a nuisance injurious to the public health was made by a tribunal before which he was not heard. It does not appear that any private right, adverse to his, is concerned. The statute upon-which the maintenance of the suit depends, Gen. Sts. c. 26 does not expressly impose upon this court, as a court of equity the duty of enforcing the orders of the board of health made in pursuance of- that chapter. Our only jurisdiction, therefore, in the premises, is the general jurisdiction of a court of equity in cases of nuisance.

Without, therefore, precluding the resort to other remedies we have come to the conclusion that equity does not require that this bill should be sustained. It is in its nature not merely remedial, but contains many of the elements of a penalty or forfeiture ; and the defendant’s position, however disastrous, is the result in part of a mistake.

Bill dismissed, without prejudice.

* Gray, J. did not sit in this case, at either hearing.