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Acts of 1889, 377.

Any city or town may, by its board of aldermen, selectmen, board of health or other officer or officers having in charge the disposition of the garbage, refuse and offal of such city or town, contract for a term of years for the disposition of such garbage, refuse and offal by cremation or otherwise.

Acts of 1895, 385.

Whoever knowingly feeds or has in his possession with intent to feed to any food animal, except swine, any garbage, refuse or offal collected by any city of more than thirty thousand inhabitants, by contract or otherwise, shall be punished by imprisonment in the jail or house of correction not exceeding thirty days, or by fine not exceeding fifty dollars.

Board of health

to make regula

1797

NUISANCES, SOURCES OF FILTH, CAUSES OF
SICKNESS, ETC.

P. S., 80, § 18.

The board of health of a town shall make such regulations respecting tions as it judges necessary for the public health and nuisances, etc. safety, respecting nuisances, sources of filth and causes of sickness, within its town, or on board of vessels within the harbor of such town, and respecting articles which are capable of containing or conveying infection or contagion, or of creating sickness, brought into or conveyed from its town, or into or from any vessel. Whoever violates any such regulation shall forfeit a sum not exceeding one hundred dollars.

A regulation that no person shall remove, cart, or carry through any of the streets, lanes or alleys of a city, any house-dirt, refuse, offal, filth or animal or vegetable substance from any of the dwelling-houses or other places occupied by the inhabitants, in any cart, wagon, truck, hand-cart or other vehicle, unless such person so removing, together with the cart, shall be duly licensed for that employment and purpose by the mayor and aldermen, upon such terms and conditions as they shall deem the health, comfort, convenience or interest of the city require, on pain of forfeiting a sum not less than three dollars nor more than twenty, is valid.

Vandine, petitioner, 6 Pick. 187.

For decision upholding the validity of a regulation prohibiting the keeping of swine in a particular district of a city, see Commonwealth v. Patch, 97 Mass. 221.

But see Commonwealth v. Young, 135 Mass. 522, to effect that keeping of swine is, in certain cases, an "employment," and that in prohibiting its exercise the board must proceed under Pub. Stats., chap. 80, sects. 84, 87, 88, and not under sect. 18.

A private passageway about four feet wide, in the city of Boston, was laid out and maintained by the abutters thereon for the benefit of all their lots, which extended to the centre of the passageway. The land formerly belonged to the city of Boston, which reserved the right to lay a sewer through the whole of such passageway, and which for many years had kept the same clear, though it always claimed that it was not its duty to do so, and ceased to do so in the spring of 1891. Held, that an ordinance forbidding an abutter to allow filth to remain on that part of the passageway adjoining his land was not unreasonable and indefinite, and that it was no defence to a complaint for the violation thereof, that the defendant was required to remove matter which he had no agency in depositing in the passageway, or to do what he would not be obliged to do if he did not own land abutting on such passageway; or that the ordinance omitted to provide a time beyond which the filth should be allowed to remain; or that it required the defendant to do in part the work which the city had formerly done; or that another ordinance forbade the defendant from removing filth or refuse matter through the streets without a permit from the board of health, it appearing that such removal was intrusted by still another ordinance to the sanitary police; or that the complaint did not set out any of the defendant's right to use the passageway.

Cities and towns may adopt ordinances and by-laws for the preservation and promotion of the health of their inhabitants as an exercise of the police power.

The reasonableness or sufficiency of an ordinance or by-law is not to be tested always by its application to extreme cases. Commonwealth v. Cutter, 156 Mass. 52.

P. S., 80, § 19.

of regulations. 1816

The board shall give notice of all regulations made by To give notice it by publishing the same in some newspaper of its town, or, where there is no such newspaper, by posting them up in some public place in the town. Such notice shall be deemed legal notice to all persons.

See City of Salem v. Eastern Railroad Company, 98 Mass. 431, 443.

Board of health

to examine into and abate nuisances, etc.

1797

To order certain nuisances, etc., abated by

owner.

1797

P. S., 80, § 20.

The board shall examine into all nuisances, sources of filth and causes of sickness, within its town, or in any vessel within the harbor of such town, that may in its opinion be injurious to the health of the inhabitants, and shall destroy, remove, or prevent the same as the case may require.

P. S., 80, § 21.

Acts of 1894, 218, § 4.

The board shall order the owner or occupant at his own expense to remove any nuisance, source of filth, or cause of sickness, found on private property, within twenty-four hours, or such other time as it deems reasonable, after notice served as provided in the following section; and if the owner or occupant neglects so to do, he shall forfeit a sum not exceeding twenty dollars for every day during which he knowingly permits such nuisance or cause of sickness to remain after the time prescribed for the removal thereof.

An order of a board of health, under the Gen. Stats., chap. 26, sect. 8 (Pub. Stats., chap. 80, sect. 21), for the removal of a nuisance is valid without previous notice to the parties interested and opportunity for them to appear and be heard.

Salem v. Eastern Railroad Company, 98 Mass. 431.

An order of a board of health under the Gen. Stats., chap. 26, sect. 8 (Pub. Stats., chap. 80, sect. 21), for removing a nuisance need not prescribe a mode for the removal.

Salem v. Eastern Railroad Company, 98 Mass. 431.

An order of the board of health of a city, under the Gen. Stats., chap. 26, sect. 8 (Pub. Stats., chap. 80, sect. 21), directing the owner (or occupant) of land to remove a nuisance in a specific manner, is void.

Watuppa Reservoir v. Mackenzie, 132 Mass. 71.

A notice issued, under the Pub. Stats., chap. 80, sect. 21, by the board of health of a town to the occupant of certain premises, reciting that a nuisance, "consisting of a filthy hog-pen and stable," exists thereon, and ordering him "to abate the said nuisance on your estate, and also to remove your hogs outside the limits of the village, within forty-eight hours after the service hereof," is valid as an order to abate the nuisance, and is not rendered void by the direction to remove the hogs. Commonwealth v. Alden, 143 Mass. 113.

In the absence of statutory authority neither the board of health nor the city council of a city has any power to erect a

dam on a person's land, without his consent, for the purpose of abating a nuisance existing on adjacent land.

Cavanagh v. Boston, 139 Mass. 426.

cf. Huse v. Amesbury, 163 Mass. 240.

A piggery in which swine are kept in such numbers that their natural odors fill the air thereabout and make the occupation of the neighboring houses and passage over the adjacent highways disagreeable is a nuisance, and on the trial of an indictment for maintaining such nuisance evidence that it is the custom in this Commonwealth to locate such establishments in populous localities and to tolerate them there is inadmissible.

Commonwealth v. Perry, 139 Mass. 198.

cf. Commonwealth v. Young, 135 Mass. 526.
See also Fay v. Whitman, 100 Mass. 76.
Commonwealth v. Sweeney, 131 Mass. 579.

In order to amount to a nuisance, it is not necessary that the corruption of the atmosphere should be such as to be dangerous to health, it is sufficient that the effluvia are offensive to the senses and render habitations uncomfortable.

Per Shaw, C. J., in Eames v. Worsted Co., 11 Met. 570-572. As to conclusiveness of adjudications of a board of health on the existence of a nuisance see

Salem v. Eastern Railroad Company, 98 Mass. 431, 446–452. cf. Miller v. Horton, 152 Mass. 540, 545 et seq.

The following rules as to orders made under this section may be deduced from the opinion in

Salem v. Eastern Railroad Company, 98 Mass. 431, 444. The order addressed to a person directing him to remove a nuisance should describe the nature and locality of the nuisance.

The order should not direct in what mode the person should proceed to remove the nuisance, but should direct the end to be accomplished, leaving the party to adopt any effectual mode he may choose.

"The manifest purpose . . . 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."

P. S., 80, § 22.

abatement,

Such order shall be made in writing, and served by any Order for person competent to serve a notice in a civil suit, per- how served. sonally on the owner, occupant, or his authorized agent; 1849 or a copy of the order may be left at the last and usual place of abode of the owner, occupant, or agent, if he is known and within the state. But if the premises are unoccupied and the residence of the owner or agent is unknown or without the state, the notice may be served

Owner not

complying,

nuisance at his expense. 1797

by posting the same on the premises and advertising in one or more public newspapers in such manner and for such length of time as the board or health officer may direct.

A notice issued, under the Pub. Stats., chap. 80, sect. 21, by the board of health of a town to the occupant of certain premises, ordering him to remove the nuisance existing thereon, may be served by a constable, although he is a member of the board of health, and signs the notice.

Commonwealth v. Alden, 143 Mass. 113.

It is not necessary that a complaint to recover the forfeiture provided by the Pub. Stats., chap. 80, sect. 21, for permitting a nuisance to remain on the premises after the time prescribed by the board of health of a town for its removal should be made by the town treasurer, but it may be made by an agent of the board of health, appointed under the Pub. Stats., chap. 80, sect. 16.

An omission in a complaint, under the Pub. Stats., chap. 80, sect. 21, for permitting a nuisance to remain on the premises after the time prescribed by the board of health of the town for its removal, to allege that the complainant is an agent of the board of health, he being in fact such agent, is at most a formal defect, which can be availed of only by a motion to quash. Commonwealth v. Alden, 143 Mass. 113.

See also decisions and rules as to such orders, sect. 21, sup.

P. S., 80, § 23.

If the owner or occupant fails to comply with such board to remove order, the board may cause the nuisance, source of filth, or cause of sickness, to be removed, and all expenses incurred thereby shall be paid by the owner, occupant, or other person who caused or permitted the same, if he has had actual notice from the board of health of the existence thereof.

"If the owner or occupant neglect to remove the nuisance, the board of health are then at liberty to enter upon the private property where it exists and take such measures as they may see fit for its removal."

Salem v. Eastern Railroad Company, 98 Mass. 431, 444. "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,

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