Commonwealth v. Parks

30 N.E. 174, 155 Mass. 531, 1892 Mass. LEXIS 366

Opinion

Holmes, J.

It is settled that, within constitutional limits not exactly determined, the Legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property. Sawyer v. Davis, 136 Mass. 239. Rideout v. Knox, 148 Mass. 368. It is still plainer that it may prohibit a use of land which the common law would regard as a nuisance if it endangered adjoining houses or the highway, and the Legislature may authorize cities and towns by ordinances and by-laws to make similar prohibitions. Salem v. Maynes, 123 Mass. 372, 374. Barbier v. Connolly, 113 U. S. 27. Furthermore, what the municipal body may forbid altogether, it may forbid conditionally, unless its written permission is obtained beforehand. We see nothing in Newton v. Belger, 143 Mass. 598, or in Yick Wo v. Hopkins, 118 U. S. 356, and Baltimore v. Radecke, 49 Md. 2l7, to make us doubt the correctness of the decision in Quincy v. Kennard, 151 Mass. 563. Nor do we think it matters that the permission required is that of the aldermen, and not that of the whole city council.

In view of the foregoing principles and decisions, we are of opinion that the power, when deemed necessary for public safety, to prohibit blasting roclcs with gunpowder without written consent, is among the powers given by the Pub. Sts. c. 27, § 15.

Footnotes

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* Equal powers are conferred upon the city council of Somerville by its charter. St. 1871, c. 182, § 23. It would be a mere perversion to construe the Pub. Sts. c. 102, §§ 60, 61, authorizing cities and towns to make ordinances and by-laws in regard to the use of explosive compounds, defined in § 68, so as not to include gunpowder, as cutting down the power which is given in the earlier chapter, and which we have no doubt extended to this case before the passage of the St. of 1877, c. 216, from which the sections first cited are taken. It would be a still greater perversion to construe the sections giving authority over offensive trades to town boards of health as having such an effect. Pub. Sts. c. 80, § 84 et seq.

The prohibition which the Pub. Sts. c. 27, § 15, as construed by us, purport to authorize, is not such a taking of property as always to be beyond the police power. Under Miller v. Horton, 152 Mass. 540, 547, blasting might be a private or a public nuisance. Hay v. Cohoes Co. 2 Comst. 159. Tremain v. Cohoes Co. 2 Comst. 163. Regina v. Mutters, Leigh & Cave, 491. Forbidding it does not trench upon the rights of ownership to such an extent as necessarily to require compensation.

It may be that a by-law absolutely prohibiting blasting would be invalid in some towns in this Commonwealth. It may be that, in order to determine the question, we should have to take into account facts touching the mode in which the particular town was occupied and the nature of its industries, whether we listened to evidence of such facts or noticed them judicially. Commonwealth v. Worcester, 3 Pick. 462, 474. Austin v. Murray, 16 Pick. 121, 125. Johnson v. Simonton, 43 Cal. 242, 249. But however this may be, we find nothing in the facts before us to lead us to doubt the reasonableness of the ordinance of Somerville.

The ordinance being valid, the defendants have had their hearing in this case on the only question upon which they were entitled to one, namely, whether they had done the prohibited act. Miller v. Horton, 152 Mass. 540, 546.

,'Exceptions overruled.

The part of § 15 of the Pub. Sts. c. 27, referred to in the opinion, is as follows: “ Towns may make for the following named purposes, in addition to other purposes authorized by law, such necessary orders and by-laws, not repugnant to law, as they may judge most conducive to their welfare, and may fix penalties, not exceeding twenty dollars for one offence, for breaches thereof: For directing and managing the prudential affairs, preserving the peace and good order, and maintaining the internal police thereof. . . .”