Commonwealth v. Kidder

107 Mass. 188

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1871
• Status: Published

Opinion

Gray, J.

The only ground of defence, upon which the defendants rely, is that they are protected against this indictment by the Sts. of 1866, e. 285, and 1869, c. 152. In order to ascertain the intention of the legislature in enacting these statutes, it is important to take into consideration not only the provisions of the statutes themselves, but also the law as it stood before their passage, and the rule that statutes in derogation of the common lay? are to be construed strictly.

A nuisance at common law may consist in the keeping or manufacture of gunpowder, naphtha, or other explosive or inflammable substances in such quantities and places or in such a manner as to be dangerous to the persons and property of the inhabitants of the neighborhood. People v. Sands, 1 Johns. 78. Cheatham v. Shearon, 1 Swan (Tenn.) 213. Regina v. Lister, Dearsly & Bell, 209. It may also consist in the carrying on of any trade or business in such a manner as to emit offensive odors and stenches, either injurious to the health of the public, or making the occupation of. neighboring dwelling-houses uncomfortable and disagreeable. Eames v. New England Worsted Co. 11 Met. 570. Commonwealth v. Upton, 6 Gray, 473. Commonwealth v. Rumford Chemical Works, 16 Gray, 231. Bamford v. Turnley, 3 B. & S. 62.

The St. of 1865, c. 244, imposed a penalty of $1000 on any one who should store or keep petroleum or naphtha in a greater quantity than five hundred gallons in one locality without license from the mayor and aldermen or selectmen ; and authorized city councils and selectmen to adopt such rules and regulations as they might deem reasonable in relation to the storage, keeping and sale thereof within the limits of their municipalities.

The St. of 1866, e. 285, § 1, is as follows : “ Crude petroleum, or any of its products, may be stored, kept, manufactured or refined, in detached and properly ventilated buildings specially adapted to the purpose, and surrounded by an embankment so constructed as to effectually prevent the overflow of said petroleum or any of its products beyond the premises on which the same may be kept, manufactured or refined ; said buildings to be occupied in no part as a dwelling, and if less than fifty feet from any other building must be separated therefrom by a stone or brick wall at least ten feet high and sixteen inches thick.” Section 2 imposed a penalty of $500 on any one who should manufacture, refine, mix, store or keep any oil or fluid, composed wholly or in part of any of the products of petroleum, in a greater quantity than five hundred gallons in any one locality, except as provided in § 1, without a license from the mayor and aldermen oi selectmen, to continue in force not more than one year and revocable at their pleasure. Section 3 authorized city councils and selectmen to adopt such rules and regulations as they might deem reasonable, not inconsistent with the provisions of that act, in relation to the manufacture, mixing, storing, keeping and selling of any of said products. And § 4 repealed the St. of 1865.

The1 St. of 1869, e. 152, § 5, reenacted the St. of 1866, c. 285, § 1, with the single difference of substituting twelve for sixteen inches in the thickness of the wall required. Sections 6 and 9 of the St. of 1869 do not materially differ from §§ 2 and 3 of the St. of 1866. The other sections of the St. of 1869 relate only to the inspection, storing, selling, mixing' for sale, and offering for sale, of such products.

These enactments are manifestly intended to protect the public against the dangers arising from the explosive and inflammable nature of petroleum ; and, having regulated the whole subject in that aspect, they might well be deemed to protect any establishment, guarded as they direct, from indictment as a nuisance on account of such dangers only. But they contain no provisions for preventing the spread of unwholesome and offensive odors in the course of the manufacture ; and if the defendants’ position were sustained, the result would be that no limit would be put to such manufacture in the most crowded and populous portions of any town or city. The reasonable, if not the necessary, inference is, that it was not the intention of the legislature to establish a new rule in this regard, but to leave the question whether the manufacture is carried on at such places and in such a manner as to be unwholesome and offensive to the public, and on that account indictable as a nuisance, to be determined by the rules of the common law.

Exceptions overruled.