Commonwealth v. Collins , 257 Mass. 580 ( 1926 )

Carroll, J.

This case arose under G. L. c. Ill, §§ 122-125, relating to the public health. The record shows that the defendant was guilty and that sufficient evidence was introduced to warrant the finding. The jury viewed the premises.

An ordinance of the city of Boston was in evidence. This ordinance directed that the health department of the city shall be under the charge of a health commissioner to be appointed by the mayor under St. 1909, c. 486, §§ 9, 10, the commissioner to exercise the powers and perform the duties imposed by law upon “the board of the city of Boston or upon the chairman thereof.” By reason of this ordinance the health department of the city of Boston was under the control of a health commissioner who exercised the authority of a board of health. Commonwealth v. E. E. Wilson Co. 241 Mass. 406, 409.

The secretary of the commissioner testified that he was his secretary, that it was part of his duty to keep a record of the doings of the commissioner; and he produced the book of records of the commissioner. Subject to the defendant’s exception the following record, taken from said book, was then introduced in evidence:

“April 16, 1925.

“Health Commissioner Mahoney was present in his office and transacted the following business: The record of April 15th was read and approved.

“It was ordered that in the opinion of the Health Commissioner there exists on each of the following premises a nuisance, source of filth and cause of sickness. It is therefore hereby ordered that the owners thereof be ordered to remedy the same within twenty-four hours of service of notice.

“126 Leverett St.

(Signed) S. L. Maloney, Secretary.”

The defendant excepted to this record, first, because it is secondary evidence when primary evidence was possible; and second, because the nuisance adjudged is not the nuisance complained of.

The record was properly admitted. . It was not secondary evidence. Under G. L. c. 233, § 76, copies of records in any department of the city when authenticated by the attestation of the officer who has charge of the same “shall be competent evidence in all cases equally with the originals thereof.” The original record, therefore, was admissible. Commonwealth v. Segee, 218 Mass. 501, 504. See G. L. c. 66, § 6, requiring every department, board, commission or officer of the Commonwealth, or of a county, city or town “for which no clerk is otherwise provided by law,” to designate “some person as clerk, who shall enter all its votes, orders and proceedings in books and shall have the custody of such books.” See also G. L. c. 111, § 27, by which boards of health are given authority to choose a clerk; and § 28 requiring the board of health to make a full report to the city council of its acts during the preceding year, and of the sanitary condition of the city. There is nothing in Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359, in support of the defendant’s contention that the record of the health commissioner was incompetent or inadmissible in evidence.

The defendant also excepted to the record because “the nuisance adjudged is not the nuisance complained of.” The record of the health commissioner did not specify the “source of filth, and cause of sickness” constituting the nuisance. In the notice or order to abate the nuisance, however, the defendant’s attention was called to the specific things constituting the nuisance. The record was admissible. • There was, in fact, no variance between the record and the complaint, and there was no substantial variance between the order or notice to abate and the complaint.

The defendant also excepted to the order of the health commissioner because “no order of the health commissioner has been proved.” The notice itself expressly orders the removal of the nuisance. It was an order from the health commissioner to the defendant, requiring him to act. The statute did not require a notice to the defendant before the order was sent to him. See Salem v. Eastern Railroad, 98 Mass. 431, 433.

The notice was sufficiently definite. See Salem v. Eastern Railroad, supra, page 444. Durgin v. Minot, 203 Mass. 26, Belmont v. New England Brick Co. 190 Mass. 442, 445, Mansfield v. Atlantic Chemical Co. 237 Mass. 56, and Commonwealth v. Badger, 243 Mass. 137, are not applicable.

The particular things mentioned in the notice as a source of filth and cause of sickness could have been found to constitute a nuisance. See Stone v. Heath, 179 Mass. 385, 387, 388. This was a question of fact for the jury to pass on. The cases cited by the defendant on this aspect of the case are to be distinguished from the case at bar.

The order notified the defendant to abate the nuisance within twenty-four hours from the service of the notice. The contention of the defendant is that the time allowed to remove the nuisance is unreasonable. G. L. c. Ill, § 123, directs that a board of health shall order the owner or occupant of the premises to remove a nuisance within twenty-four hours, “or within such other time as it considers reasonable.” This objection to the notice did not render it inadmissible, and the judge could not have excluded it on this ground.

There is nothing in the record to show that the defendant could not have complied with the order, notwithstanding his exception to the record on the ground that he could not “by his own efforts remove the nuisance complained of”; and the notice was not objectionable on this ground. See Cambridge v. Munroe, 126 Mass. 496, 502.

The statute did not require that the notice should be signed by the health commissioner. G. L. c. Ill, § 27, authorizes the commissioner to employ a clerk. The notice signed by him conformed to the statute.

The notice was served by “delivering a copy to the defendant in hand.” There is nothing in the statute requiring the service of the original notice on the defendant, and service may be made by a copy left at the owner’s usual place of abode. G. L. c. Ill, § 124. The notice was properly served.

Exceptions overruled.