City of Salem v. Eastern Railroad

98 Mass. 431

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1868
• Status: Published

Opinion

Wells, J.

This action is brought under Gen. Sts. c. 26, § 10, against the defendants as the party who caused the nuisance complained of and alleged to have been removed. Several objections are made to the maintenance of the action.

1. It is contended that the action should have been brought in the name of the board of health, instead of the city of Salem. But it is clear that the functions of the board of health are official merely. They have no interest in the question ; they do not expend their own money in removing the nuisance, and have no funds in their charge for that purpose; and consequently they can have no claim to the payment required by the statute. The expenses are incurred by the city, whose officers they are; and payment is to be made to the city. Gen. Sts. c. 26, § 49. The action is therefore properly brought in the name of the city. Winthrop v. Farrar, 11 Allen, 398. The cases cited by the defendants are cases of certiorari, which necessarily is directed to the board or tribunal whose proceedings are brought in question.

2. It is contended that the act of the legislature of 1856, c. 305, which was passed after the completion of the embankment of which complaint is made, legalized that structure as it now exists, and so is a bar to the proceedings of the board of health against the corporation. But it seems to us clear that no such purpose could have been contemplated by that statute. Its apparent purpose is to remedy some deficiency in the authority originally conferred upon the corporation, or to confirm some real or supposed departure therefrom; and in that view it should be construed as if it formed a part of the original grant of po.wers. It cannot be supposed that the legislature intended to exempt the corporation from responsibility for unnecessary or unreasonable encroachments upon either private or public rights by its mode of constructing the road or its embankments. Such operation can be given to legislative grants of authority only when it results necessarily from the application of the grant to the object which is to be attained thereby. Springfield v. Connecticut River Railroad Co. 4 Cush. 63.

3. The proceedings of the board of health are said to be defective, because taken without previous notice to the defendants and opportunity to be heard. The evidence tended to show that the defendants were notified of the pendency of proceedings, ana of the action taken by the board of health from time to time but there was no such notice beforehand as would give the defendants an opportunity to appear and be heard upon the contemplated action of the board; and there was no hearing upon any of the questions before them.

The statute does not require any previous notice. Notice must be given of general regulations prescribed by the board of health under §§ 5 and 6, before parties can be held in fault for a disregard of their requirements. But, although such general regulations may seriously interfere with the enjoyment of private property, and disturb the exercise of valuable private rights, no previous notice to parties so to be affected by them is necessary to their validity. They belong to that class of police regulations to which all individual rights of property are held subject, whether established directly by enactments of the legislative power, or by its authority through boards of local administration. Baker v. Boston, 12 Pick. 184, 193. Commonwealth v. Tewksbury, 11 Met. 55. Commonwealth v. Alger, 7 Cush. 53, 85. Belcher v. Farrar, 8 Allen, 325. The authority of the board of health in respect to particular nuisances stands upon similar ground. Their action is intended to be prompt and summary. They are clothed with extraordinary powers for the protection of the community from noxious influences affecting life and health, and it is important that their proceedings should be embarrassed and delayed as little as possible by the necessary observance of formalities. Although notice and opportunity to be heard upon matters affecting private interests ought always to be given when practicable, yet the nature and object of these proceedings are such that it is deemed to be most for the general good that such notice should not be essential to the right of the board of health to act for the public safety. Delay for the purpose of giving notice, involving the necessity either of public notice or of inquiry to ascertain who are the parties whose interests will be affected, and further delay for such hearings as the parties may think necessary for the protection of their interests, might defeat all beneficial results from an attempt to exercise the powers conferred upon boards of health. There are many cases in which powers of determination and action, of a quasi judicia. character, are given to officers intrusted with duties of local oi municipal administration, by which not only the property but the lives of individuals may be affected, and which, from their nature, must be exercised, finally and conclusively, without a hearing, or even notice to the parties who may be affected. Of this class are the authority of fire-wards or other officers to direct buildings to be demolished to prevent the spreading of fires; Gen. Sts. c. 24, § 4; Taylor v. Plymouth, 8 Met. 462; of magistrates to require aid and to use force, armed or otherwise, to suppress tumults; Gen. Sts. c. 164, §§ 4, 6; of the mayor or other officers to call out a military force for like purposes. Gen. Sts. c. 13, § 134. Ela v. Smith, 5 Gray, 121.

The necessity of the ease, and the importance of the public interests at stake, justify the omission of notice to the individual. 'When the statute authorizing the proceedings requires no notice, their validity without notice is not to be determined by the apparent propriety of giving notice in the particular case, but by considerations affecting the whole range of cases to which the statute was intended to apply.

4. It is objected that the order addressed to the defendants, in pursuance of § 8, does not properly describe the nuisance, nor direct the mode in which it was to be removed. But it informs the defendants of the nature and locality of the nuisance; and that is sufficient to enable their officers to apply the remedy, if they should see fit to do so. It is not the purpose of the order to direct in what mode the party shall proceed to remove the nuisance. It directs the end to be accomplished, leaving the party to adopt any effectual mode which he may choose. No such order is required to be issued to any party except the owner or occupant of the property upon which the nuisance is found. The manifest purpose of this provision is to enable the owner or occupant to remedy the evil in the mode least detrimental or offensive to himself, and thus,secure himself and his premises from the intrusion of the agents of the board of health. If the owner or occupant neglect to remove the nuisance, the board of health arc then at liberty to enter upon tie private property where it exists, and take such measures as they may see fit for its removal.

It is urged that the board of health can do only what the owner has failed to do. That may be true; but that is, to remove the nuisance. If the previous report of the committee, accepted and sent to the defendants, be taken as a part of the order afterwards made, the defendants were not bound to adopt that mode of remedying the evil, if another mode could be made to answer the end sought. Neither are the board of health restricted to that mode, when they come to act. They are not only at liberty, but it is their duty, to exercise their best discretion at the time.

It is not to be inferred, from the fact that this preliminary order is required to be served only upon the owner or occupant of the land upon which the nuisance is found, that the subsequent proceedings for recovery of the expenses of removal are limited to such owner or occupant. By the express terms of § 10, they may be claimed of any “ other person who caused or permitted ” the nuisance. As to such other person, it is only requisite that he “ has had actual notice from the board of health of the existence thereof.”

5. It is argued by the defendants that a dam or railroad embankment, although it may be the cause of that which constitutes a nuisance, is not, and cannot be, per se, a nuisance injurious to the public health ; and therefore that the board of health have no power over the land and structures of the defendants, under the statutes in question. It would seem to be the natural construction of these statutes to apply the terms “ nuisance, source of filth, or cause of sickness,” to those obvious and palpable objects from which danger to public health directly arises. A permanent structure, like a dam, bridge, or embankment, may, by the manner in which it is used, or in which it obstructs the passage of water, become so injurious to public rights as to subiect the party maintaining it to be prosecuted by indictment. Eames v. New England Worsted Co. 11 Met. 570. But it may well be questioned whether it can be abated in this summary manner, as being in itself a nuisance such as is contemplated by this statute. That question, however, is not involved here. The whole proceedings designate the deposits in the mill-pond as the subject of the action of the board of health ; and the claim upon the defendants is made upon the ground of causing, by their structure, the nuisance in said pond. The only question, therefore, that can arise in regard to their power to affect the defendants’ land is, whether they were justified in entering upon it to dig a trench for the purpose of removing or preventing the nuisance existing upon lands of other proprietors adjoining.

The importance of the duty imposed upon the board of health, the necessity of prompt and decisive measures to protect the public health, require a wide discretion in the use of means by which to “ destroy, remove, or prevent ” such cause of sickness. If it be necessary to the proper performance of their duty, they may, undoubtedly, in the exercise of their discretion, resort to means and measures which affect injuriously other lands than those upon which the manifestation of the cause of sickness is found. Baker v. Boston, 12 Pick. 184, 193. To what extent they may destroy, injure or appropriate private property other than that which constitutes or causes the nuisance; when and in what mode compensation therefor is recoverable; whether they may be held personally responsible, if they take or injure property unnecessarily or improperly; are questions which need not now be determined.

6. The most important and most difficult question in the case relates to the effect of the orders of the board of health by which the existence of the nuisance was “found and determined;” and that it was created and maintained by the defendants; and which also directed its removal by the defendants.

The plaintiffs’ counsel contend that the proceedings of the board of health are quasi judicial; and that the determinations and orders made by them in that capacity are adjudications conclusive against the defendants upon all the facts involved in those determinations. If this be so, the defendants are precluded from denying the existence and alleged cause of the nuisance, and their duty to remove it. We do not find in the proceedings of the board of health, as reported, any determination by the board relative to the method of removal which was undertaken, other than by the subsequent adoption of a report stating the cost thereof, and that the trench was in successful operation. The record indicates another mode quite different from the one actually adopted. The propriety of that mode of removal, the reasonableness of the expenses, and the success or failure of the attempted remedy, would therefore be open to investigation upon either view of the case.

But the court are of opinion that, in a suit to recover expenses incurred in removing a nuisance, when prosecuted against a party on the ground that he caused the same, but who was not beard, and had no opportunity to be heard, upon the questions before the board of health, such party is not concluded by the findings or adjudications of that board, and may contest all the facts upon which his liability is sought to to be established. He is neither party nor privy to those adjudications ; he has no right of appeal, and no other means by which to revise the proceedings or to correct errors, either of law or fact, therein. Parties similarly situated in respect to judgments in courts of law may impeach them collaterally, Vose v. Morton, 4 Cush. 27. “ It is an essential principle of natural justice that every man have an opportunity to be heard in a court of law, upon every question involving his rights or interests, before he is affected by any judicial decision of the question.” Commonwealth v. Cambridge, 4 Mass. 627. Bradstreet v. Neptune Insurance Co. 3 Sumner, 600, 607. In the case of Belcher v. Farrar, 8 Allen, 325, 328, it is intimated that even a general regulation, adopted by a board of health in accordance with the statute, which might operate to render valueless a large property by forbidding the prosecution of the business for which it was erected, would be invalid as in violation of “one of the fundamental principles of justice,” but for a provision of the statute which gave to the party a right of appeal from the order enforcing the regulation, and upon such appeal to have the whole matter involved in the issue tried by a jury.

The law applicable to judgments rendered upon default of parties who have not been duly served with process affords analogies which bear upon this question. Such judgments in this state are treated as valid until reversed, for the reason that the parties have an adequate remedy by review or writ of error. When such judgments are rendered in the courts of another state, the party is not remitted to the foreign jurisdiction to seek his relief; but, in any attempt to enforce them against him personally, or to use them as evidence against him, he may deny their validity, and controvert any and all facts upon which they purport to be founded. Finneran v. Leonard, 7 Allen, 54. Watson v. New England Bank, 4 Met. 343. Phelps v. Brewer, 9 Cush. 390. They are nevertheless held to be valid and conclusive, so far as they may operate upon property found within the jurisdiction of the courts where they are rendered; so that a title acquired in such property by means thereof will be sustained, even where the judgment itself is allowed to have no other force. And, if the operation of such a judgment be to appropriate a debt there due to the defendant, and apply it in satisfaction of the judgment, under proceedings of foreign attachment or otherwise, it will be a sufficient protection to the garnishee for the payment of his debt in that mode, provided he has himself conducted with good faith and diligence; and he may rely upon the judgment as conclusive for that purpose, whenever and wherever afterwards he may be called upon again for payment. Bissell v. Briggs, 9 Mass. 462. So far as such judgments can be supported as proceedings in rem, they are valid and conclusive. But as adjudications in personam they are of no binding force. This is the general rule, not only in Massachusetts, but elsewhere in this country. Bradshaw v Heath, 13 Wend. 407. Cochran v. Fitch, 1 Sandf. Ch. 142. 1 Greenl. Ev. §§ 541-543. Downer v. Shaw, 2 Foster, 277. Wood v. Watkinson, 17 Conn. 500.

Adjudications which stand merely as proceedings in rem cannot, as a general rule, be made the foundation of ulterior proceedings in personam, so as to conclude a party upon the facts involved. In most cases of suits which are in their nature proceedings in rem, and so designated, personal or public notice to parties interested is required to be given ; and they are entitled to appear and be heard, and to have such rights in relation to the proceedings as are accorded to parties litigant. Against such parties, whether they have actually appeared or not, the adjudication is held to be conclusive upon the facts which are made the ground of the judgment, when those facts are again brought in question in ulterior or collateral proceedings. But such effect is due to the fact that they were so made parties to the proceedings. The Mary, 9 Cranch, 126, 144. Whitney v. Walsh, 1 Cush. 29. Scott v. Shearman, 2 W. Bl. 977. Hollingsworth v. Barbour, 4 Pet. 466, 474.

When there appears to have been no notice to the parties to be affected, and no opportunity afforded them to be heard in defence of their rights, whatever operation the adjudication may have upon the res, and however conclusive it may be held for the protection of those who act, or derive rights under it, the adjudication itself can have no valid operation against parties who may be named in the proceedings. If it proceed to declare any obligation or impose any liability upon such parties, they may, in any subsequent suit to enforce it, deny the validity of the judgment, and controvert the facts upon which it was based. Boswell’s Lessee v. Otis, 9 How. 336. Harris v. Hardeman, 14 How. 334. McKee v. McKee, 14 Penn. State, 231.

We think that these principles apply to the proceedings of a board of health. Their determination of questions of discretion and judgment in the discharge of their duties is undoubtedly in the nature of a judicial decision ; and, within the scope of the power conferred, and for the purposes for which the determination is required to be made, it is conclusive. It is not to be impeached or set aside for error or mistake of judgment; nor to be reviewed in the light of new or additional facts. The officer or board to whom such determination is confided, and all those employed to carry it into effect, or who may have occasion to act upon it, are protected by it, and may safely rely upon its validity for their defence. It is in this sense that such adjudications are often said to be conclusive against all the world ; and they are so, so far as the res is concerned. The statute and the public exigency are sufficient to justify the omission of previous notice, hearing and appeal. But this exigency is met and satisfied by the removal of the nuisance. As a matter of police regulation, the proceedings and the authority of the board end here. When the city comes to seek its remedy over; to throw upon some individual, supposed to have caused the nuisance, the expenses of removal which it has incurred in the first instance as the representative of the public; there seems to be no reason, founded either in the public exigency or in the justice of the case, that requires or warrants the holding of such ex parte adjudications as final and conclusive to establish the facts upon which the claim rests.

It is said that this obligation is imposed upon the party by the express terms of the statute, as the direct and necessary consequence of a disregard of the order from the board of health. If this were so, we should feel obliged to hold that no adjudication could be made in the premises, and no order issued, until the parties had been notified and heard in their defence. Capel v. Child, 2 Cr. & Jerv. 558. Bonaker v. Evans, 16 Q. B. 162. But we do not think that this is the effect of the statute. However it may be as to the penalty imposed upon the owner or occupant by § 8, it is clear that it cannot be so with the liability incurred under § 10. That liability is imposed upon a class which does not correspond with the one to which the order is required to be addressed. It differs by including any “ other person who caused or permitted” the nuisance. No order is required to issue to such other person. And, if it should issue, it would be without authority of law. It could have no other effect than as notice to the party. Actual notice from the board of health of the existence of the nuisance is all that such “ other person ” is entitled to receive. But notice of the existence of the nuisance does not put him in the position of a party to the proceedings from which the adjudication results; and even this notice was not required in the earlier statutes. Rev. Sts. c. 21, § 11.

The jurisdiction necessary to give validity to judicial decrees which will be binding in personam is not acquired from the mere fact of the presence of the person within the territorial limits over which the tribunal may exercise jurisdiction. At common law, the actual presence of the party in court was required; and, if he did not appear, his presence was enforced by peremptory process. It is only by force of statutes that judgments may be entered upon default after service of process or notice upon the party. Picquet v. Swan, 5 Mason, 35. Judgments are no more invalid when the defendant is beyond the reach of the process of the court, than when, being within the jurisdiction, no opportunity is afforded him to appear and defend his interests. It is well settled also that, where there is jurisdiction for a special purpose only, any attempt to exercise a general power will be void as to the excess. Bates v. Delavan, 5 Paige, 299.

From the foregoing considerations we are led to construe the statutes in question as conferring no judicial power upon the board of health beyond that which is absolutely essential to the performance of their administrative functions for the accomplishment of the end contemplated, to wit, the summary abatement of nuisances of the class indicated. The absence of any provision for previous notice and hearing, the summary execution of the order without means of redress or relief by appeal or otherwise against error and injustice, would make the proceedings violate the fundamental principles of justice universally recognized, if they should be held to establish, by an unalterable and absolutely conclusive decree, the personal liability of the parties who might be named by the board of health as having caused or permitted the nuisance. We cannot yield to a construction which would lead to such results. By the narrower construction which we have indicated, the statute will have its full and effective operation as a police regulation, while parties who are charged with responsibility for the expenses incurred will not be deprived of that full opportunity of defence which is essential to the due administration of justice in whatever form of judicial proceeding it may be undertaken.

, The record of proceedings of the board of health is competent evidence in the present case for some purposes. It proves the fact that such proceedings were had, which is a necessary preliminary step. So far as the proceedings were within and in accordance with the authority and duties ff the board, they are entitled to the presumption that whatever was done was rightly done ; and may be held as primá fade evidence of the existence of a nuisance which warranted the board of health in taking action and incurring expense for its removal. But it is not evidence that the nuisance was caused by the defendants, in the manner stated, or in any manner; and all the facts, upon which it is sought to charge the defendants with liability, are open to be tried and determined by the proofs in the case.

The case will therefore stand for trial.