Raymond v. Fish

51 Conn. 80, 1883 Conn. LEXIS 41

• Court: Supreme Court of Connecticut
• Decided: September 7, 1883
• Status: Published

Opinion

Pabk, C. J.

The question in this case turns upon the construction to be given to the first and second sections of the statute with regard to public health and safety, (Gen. Statutes, p. 258,) which provide as follows: — “ The justices of the peace and selectmen in each town shall constitute a board of health, and have all the power, necessary and proper for preserving the public health and preventing the spread of malignant diseases therein, and may appoint its president and such health officers or health committee as it may deem expedient, and delegate to them any of its powers; and tlie members present at any meeting convened as the board shall direct, shall be a quorum for business. * * Such board, or such health officers or health committee, shall examine into all nuisances and sources of filth injurious to the public health, and cause to be removed all filth found within the town which in their judgment shall endanger the health of the inhabitants; and all expenses for such removal shall be paid by the person who placed it there, if known, and, if not known, by the town; and when any such filth or nuisance shall be found on private property, such board shall notify the owner or occupant of such property to remove the same at his expense, within such time as the board shall direct, and if he shall neglect to remove it he shall be fined not less than twenty dollars nor exceeding one hundred dollars and pay such expense and costs as the town shall incur by such removal; and after the expiration, of such time such board shall cause such filth or nuisance forthwith to be removed or abated; and such board, or such health officer or committee as it shall direct, may enter all places where such board shall have just cause to suspect any such nuisance or causes of filth to exist.”

In the month of May, 1881, the small village of Pequonock in the town of Groton was sorely afflicted with the contagious diseases of scarlet fever and diphtheria of a malignant character. It is said that one or more members of every household, and in some instances entire families in the village, were prostrated by one or the other or both of these diseases. From May till September of that year the sickness raged in the little community, and many deaths, numerous in proportion to the number of inhabitants, occurred. As might well have been expected, great alarm and much excitement prevailed in the village and surrounding country, and strenuous efforts were made to discover the cause of the malady. It is a matter of common knowledge that these diseases are supposed to originate in noxious exhalations from decaying animal and vegetable matter, and when once in existence are greatly aggravated by the continuance of the malarious atmosphere. The attention of the board of health of the town of Groton was called to the subject, meetings -were held by the board, and examinations were made of Pequonock river, and various other places in the vicinity of the village, to discover the cause of the malady.

■ Pequonock river is an arm of the sea and runs from the village and empties into Long Island Sound. It is about three miles long, and through its entire length the tide rises and falls about three feet. It is a sluggish stream, and has a thick muddy deposit at the bottom. This river had long been favorably known for the superior quality of its native oysters. They were found only near the shore, as the muddy bottom in the bed of the stream rendered it impossible for them to grow there.

The superior quality of the oysters induced the plaintiff and others to so place brush in the bed of the river that oysters might grow thereon, and thus be kept from the mud at the bottom. This was done in the years 1879 and 1880, and in the early part of 1881, and Pequonock river was filled with the brush, except a space one hundred feet wide in the middle of the river; and at the time sickness prevailed in the village oysters in all stages of growth were attached to the brush.

The board of health were unable, from their examinations of the river and other places, to determine with certainty what caused the malady, and thereupon requested the assistance of the state board of health. Their secretary made an examination of the river, and afterwards reported to the town board that the brush in the river with the oysters thereon were a nuisance. The town board afterwards, on the tenth day of August, 1881, had another hearing regarding the matter, at which the plaintiff and others appeared, and were fully heard. At this meeting the board passed the following vote: — “ That we concur with the state board in their recommendation that the brush be removed as a nuisance.” Thereupon the board, by their secretary, gave the plaintiff and others written notice to remove the brush owned by them respectively from the river, specifying a time when they were to begin to do it. The brush was not removed, and on the 8th day of December following the board, with some new members who had been elected in October preceding, again declared by a vote that the brush in the river was a nuisance and injurious to the public health; and again ordered the plaintiff and others to remove the brush owned by them respectively before a specified day; and caused due notice to be given to the owners of the action of the board. The plaintiff was not present at this meeting of the board. He had no notice that it was to be held, and had no knowledge of it till afterwards. The brush was not removed by the plaintiff, and the board, by the hands of the defendants, removed and destroyed it, with the oysters thereon, doing no unnecessary damage. The ease finds that the board acted in good faith throughout the whole transaction.

The case further finds that “ neither the brush, nor oysters, nor both combined, were the origin or producing cause of the diseases; ” but leaves it undetermined “ whether they may not have furnished conditions favorable to the spread and continuance of the diseases, and to making them more malignant than they otherwise would have been.”

The malady ceased to be epidemic about the first of September; and after that time, it is expressly found, that the brush and oysters were not a nuisance.

These are the principal facts of the case, and they make-the liability of the defendants depend upon the construction to be given to the statute already cited. The question is, does the statute confer upon the board of health the right to determine conclusively in any case what are nuisances and sources of filth which endanger the health of the inhabitants ; so that if they act in good faith, and merely err in-judgment, the statute will justify the act done, although the property of a third party may be destroyed ? If the statute is to be so construed, then the defendants are not responsible for the damage, whatever it may be, that they may have caused the plaintiff. If it is not to be so construed — if boards of health must act at their peril in eases of emergency, then the defendants are liable, and must respond in damages for all the injury caused by their acts.

Before coming to this question directly, we should take into consideration the object of this statute, which professes to be enacted for the preservation of the “ public health and safety.” It is well known that diseases of the most contagious and malignant character are supposed to be caused by jmisonous exhalations from decaying animal and vegetable matter. This statute is based upon that fact and wat intended to furnish a remedy in cases where such diseases are spreading, and men, women and children are .stricken down and dying in consequence of noxious effluvia from decaying matter and filth in the vicinity. In such cases there is absolute necessity for immediate action. There is no time to resort to the courts to determine whether the supposed nuisances are so in fact, and are destroying life and health in the vicinity. During such delay an entire” village might become depopulated. What shall be done ? Life and health are to be considered on the one side, and what value there may be in nuisances and filth on the other. Life and health are to be preserved at the cost of nuisances- and filth. The statute does not mean to destroy property which is not in fact a nuisance, but who shall decide whether it is so ? All legal investigations require time, and cannot be thought of. If the board of health are to decide at their •peril, they will not decide at all. They have no greater interest in the matter than others, further than to do their duty; but duty, hampered by .a liability for damages for errors committed in its discharge, would become a motive of very little power.

It would seem to be absolutely necessary to confer upon some constituted body the power to decide the matter conclusively, and to do it summarily, in order to accomplish the object the statute has in view. We think this has been done. We think the board of health of the town of Groton had the power to decide conclusively, in the apparent necessities of the case, that the brush in Pequonock river was a nuisance, endangering the life and health of the inhabitants of the village.

If we examine the different sections of the act “ for the preservation of the public health and safety,” we shall find great powers conferred upon the board of health in regard to other matters than those here in controversy. They may order any vessel into quarantine whenever they deem it expedient for the public safety. They may order any vessel to be cleansed and purified in a certain manner whenever they consider it necessary; and if such vessel shall contain any person ill with any contagious or infectious disease, they may order such person, and any other person or persons on board, to be secluded for the space of fourteen days, whether such other persons are ill at the time or not. They may interdict communication between different towns or places, whenever any contagious or malignant disease is prevalent in one of them. They may order any person Avhom they may have reasonable ground to believe to be infected with any malignant, infectious or contagious disease, into confinement in any place to be designated by them, there to remain so long as the board shall judge it to be necessary. These powers, and many others that may be found in the statute, have their origin in the urgent necessities of the case. Disease makes its ravages, and it must be met by extraordinary measures, and all persons must submit to what is absolutely necessary to stay its progress 'These powers conferred upon the board are as injurious to those upon whom they are exercised as those involved in the present controversy, to say the least. A vessel must go into quarantine at the bidding of the board, no matter how great may be the loss to the owners. A person must go into’ seclusion for the space of fourteen days, who hap•pens to be found on board a vessel where another is ill with •some contagious, disease; and if the board have reasonable ground to believe that such person is infected with the same disease, he must go into confinement, at the bidding of the board, in some place designated by them, so long as they shall consider it necessary, however grievous it may be to him,’and however great may be his pecuniary loss in consequence.

The powers of the board in these respect’s cannot be questioned, for they are expressly conferred; and if they are exercised in good faith, and with proper care and prudence, in the manner prescribed by the statute, the board cannot be made responsible for mere errors of judgment, whatever may be the consequence. And we think a like--construction must be given to the sections of the act in question in this suit, as we have already intimated. The statute commences by declaring that the board of health •“ shall have all the powers necessary and proper for the preservation of the’public health and the prevention of the spreading of malignant diseases.” The second section commences by declaring that it shall be the duty of the board to “ examine into all nuisances and sources of filth injurious to the public health, and cause to be removed all filth found within the town which in their judgment shall endanger •the health of the inhabitants.” Here power is expressly •given to decide what constitutes filth, and if they merely ■err in judgment there can be no redress. This is conceded, but it is said that the statute makes a distinction between nuisances and filth. What distinction there can be in fact in respect to their baneful influence upon contagious and malignant diseases it is difficult to see. Poisonous exhalations may come from both, and both may be free from them ; in the latter case they will not come within the control of the board. If either is injurious to the public health, it must be so because it sends forth noxious effluvia. Such effluvia could be as easily detected, coming from the one as from the other. There is no reason for the distinction, and we think none exists. Further on in the section it is provided that “ when any such filth or nuisance shall be found on private property, such board shall notify the owner or occupant of such property to remove the. same at his expense, within such time as the board shall direct,” (that is, remove the nuisance as well as the filth;) “ and after the expiration of such time such board shall cause such filth or nuisance forthwith to be removed or abated.” Here nuisances are classed with the filth first described, where the power to decide with regard to it and order its removal is expressly conferred. What ground is there for any distinction? We see none, and clearly none exists. And further, by the common law a private person has the right to abate a private nuisance that does him harm, without resort to the courts for redress. But in such case he abates at his peril. He cannot justify the act done unless he proves that the supposed nuisance was one in fact. This is the doctrine the plaintiff insists should govern this case. But unless the statute goes farther than this, nothing was accomplished by its enactment, and neighborhoods afflicted with malignant diseases might as well have been left to their rights at the common law.

But it is said that any other construction of the act renders it unconstitutional, and for the reasons that it takes away the right of trial by jury; that it deprives the owner of his property without due process of law; that it confers judicial powers upon a tribunal not warranted by the constitution; and that it takes private property for public use without compensation.

By the common law a party has the right to defend himself from any assailant even to the taking of life when necessary, and even to the taking of life when not necessary in fact, bnt apparently so. If life may be protected by destroying life, when apparently necessary but not so in fact, may not life be protected by destroying property when apparently necessary, though afterwards discovered not so in fact? But it may be said that this right of self defence comes when the assailed party seems to be driven to the last extremity. So here, the justification of the board of health in the destruction of property must come in seemingly extreme cases, where there is reasonable ground to believe that immediate action is necessary for the preservation of the life and health of the inhabitants, and where there is reasonable ground to believe the supposed nuisance to be one in fact.

We go no farther in this case than its exigencies require. We leave undecided how far the board of health may go in other cases, where the destruction of property may not seem to require such summary action. It is expressly found in the case that the board acted in good faith throughout these transactions, and in addition thereto such facts are detailed as go to show that they acted with extreme caution. We cannot doubt the constitutionality of the act when rightly considered. It is nothing more or less than a police regulation. The property was not taken for public use within the meaning of the constitution. It was destroyed for the protection of the public health.

The cases cited by the plaintiff throw but little light upon the question we are considering. They are based upon statutes differing materially from our own, and upon facts raising other questions and other issues than are involved here. The case coming nearest to the present one in its facts and in the principles involved, is that of City of Salem v. Eastern Railway Co., 98 Mass., 431, in which the court remarks as follows: — “The authority of the board of health in respect to particular nuisances stands upon similar ground, [that is, that of police regulations.] 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. * * There are many I cases in which powers of determination and action, of a quasi judicial character, are given to officers intrusted with duties of local or municipal administration, by which not j 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-wardens or other officers to direct buildings to be demolished to prevent the spreading of fires; of magistrates to require aid, and to use force, armed or otherwise, to suppress tumults; of the mayor or other officers to call out the military force for the like purpose. * * We think these principles apply to the proceedings of a boards of health. Their determination of questions of discretion - and judgment in the discharge of their duties is undoubt-1 edly in the nature of a judicial decision; and within the scope,; of the powers 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 officers 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.” We think the act is constitutional.

We think there is nothing in the claim that the board that passed the vote declaring the brush a nuisance and injurious to the public health on the 8th day of December, was á different board from the one that passed a similar vote on the 10th day of August of the same year, because it was composed of some new members who had been elected in the meantime. The hoard was the same, although all the members might be different. As well might it be claimed that the Superior Court changes as often as different judges preside.

The board being the same, it might well act in December upon what it had done in August preceding.

We further think that there was no error committed by the board in removing the brush in December, when it did not at that time endanger the life or health of the inhabitants. The board refrained from removing the brush in August, when the first vote of removal was passed, through fear that by so doing the poisonous effluvia would be greatly increased, and the malady which then prevailed would be aggravated in proportion. It became necessary, therefore, to remove the brush when it could be done in'safety to the public health. And further, the brush was removed in December to prevent a recurrence of the malady the following summer. It was reasonable to suppose, if the brush, with the oysters upon it, had caused the contagious and malignant diseases that afflicted the village during the summer preceding, it would occasion like results 'the following summer. We think there was no error in this regard.

Complaint is made that the defendants-destroyed the oysters as well as the brush. But the facts of the case furnish no foundation for this complaint. The court has found that the defendants did no unnecessary damage. This is equivalent to finding that the oysters were so attached to the brush that separation could not be made. We think there is nothing in this claim.

We advise judgment in favor of the defendants.

In this opinion the other judges concurred; except Granger, J., who dissented.