Inhabitants of Watertown v. Mayo , 109 Mass. 315 ( 1872 )

Colt, J.

The business which the defendant carries on in his slaughter-house, without the written consent and permission of the selectmen of Watertown, is in plain violation of the provisions of the St. 1871, c. 167, which prohibit the use of any building for slaughtering cattle, &c., or for other noxious or offensive trades, without such consent, in any city or town containing more than four thousand inhabitants. It is found that the defendant’s business was commenced since the passage of the act; and it therefore does not come within the protection of the proviso in the first section, in favor of buildings and premises previously occupied for such business. The defendant relies upon the invalidity of the statute on constitutional grounds; and denies that the selectmen of Watertown have any interest in the subject matter, or any right, in behalf of themselves or of the inhabitants of that town, to bring this suit.

All rights to the use and enjoyment of property, secured by the Constitutions of the United States or' of this Commonwealth, are subject to regulation under that power known as the police power of the state, which, like the power of taxation, is necessary to its existence, and which is implied in the idea of free civil government. It is defined by Blackstone to be that power which concerns “ the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations.” 4 Bl. Com. 162. It has its foundation in that maxim of all well ordered society, which requires every one to use his own so as not to injure the equal enjoyments of others having equal rights of property.

Laws passed in the legitimate exercise of this power are not obnoxious to constitutional provisions, although in some measure interfering with private rights, merely because they do not provide compensation to the individual whose liberty is restrained, lie Is presumed to be rewarded by the common benefits secured. It differs from the right of eminent domain; which involves the appropriation of private property to public use, and requires, in its lawful exercise, pecuniary compensation for the loss inflicted on the owner. Familiar instances of its exercise are found in all quarantine and fire regulations; and it has been repeatedly recognized and variously applied in the decisions of this court. Commonwealth v. Alger, 7 Cush. 53. Fisher v. McGirr, 1 Gray, 1. Commonwealth v. Tewksbury, 11 Met. 55. Baker v. Boston, 12 Pick. 184. Vandine, petitioner, 6 Pick. 187.

To a great extent the legislature is the proper judge of the necessity for the exercise of this restraining power. It is not easy to prescribe its limit. The law will not allow rights cf property to be invaded under the guise of a police regulation-for the preservation of health or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen. But a perversion of this power is not shown by the fact that the business restrained is a necessary and lawful business, which has not yet become a public nuisance in fact, or been declared to be such by the statute. The law most wisely interferes for the protection of the public by preventing in advance threatened and probable injury. Exposure to danger is itself an injury.

Nor as a police regulation is it essential that its provisions should be applicable to all parts of the Commonwealth. Density of population is itself an element which may increase the danger to be provided against, and which in any locality may justify the interference of the legislature and relieve it from the objection that its action is partial and unequal. The same rule is provided for all, to be applied only where from the surrounding circumstances there is the same exposure. Commonwealth v. Alger, 7 Cush. 53. Baker v. Boston, 12 Pick. 184. Austin v. Murray, 16 Pick. 121. Coates v. New York, 7 Cowen, 585, 604.

There is nothing in the declared purposes and provisions of the statute in question, which leads us to doubt that it comes within the constitutional exercise of the legislative power. It appears to us to provide, by legal modes, through the agency of local authorities, for a prudent restraint upon a use of property which from its nature may become injurious.

The remaining objection goes to the right of the selectmen, for -.nemselves or in behalf of the Inhabitants of Watertown, to maintain this bill. This objection, as stated in the answer, does not go to the authority in fact of the selectmen to represent the town in this matter, but denies the right of either the selectmen or the town to maintain a bill of this character.

But the right of the inhabitants of a town, in a case like this, to apply to this court for relief, and to prosecute the suit as plaintiffs, was recognized in the recent case of Winthrop v. Farrar, 11 Allen, 398. In that case, the selectmen of a town, acting as a board of health, brought a bill in equity to restrain the exercise of an offensive trade which they had prohibited under the Gen. Sts. c. 26, and an amendment was allowed substituting the inhabitants of the town as plaintiffs after the term of office of the selectmen had ceased.

The St. of 1871, c. 167, and the Gen. Sts. c. 26, relate to the same subject matter, the restraint of offensive trades. Power is given to the court under the later statute, in § 3, to prevent by injunction the erection, use or enlargement of buildings in violation of its provisions; and in the absence of any positive provision, it is to be presumed that it was not the intention to take from towns the power which they had exercised, by the decision of this court, to prosecute suits in similar cases.

Decree affirmed.