HARRINGTON et al. v. BOARD OF ALDER-
MEN OF CITY OF PROVIDENCE.
(Supreme Court of Rhode Island. Aug. 2, 1897.)
CONSTITUTIONAL LAW-ABATEMENT OF NUISANCE-
POWER OF CITY.

1. Pub. Laws April 25, 1889, c. 777, as amended by chapter 1407 of March 1, 1895, empowering the aldermen of Providence to abate a privy vault, regardless of the manner in which it is kept, where situate upon premises abutting on a street in which there is a sewer, provides for the proper exercise of police power as to subject-matter,

and is not unconstitutional.

2. Pub. Laws April 25, 1889, c. 777, as amended by chapter 1407 of March 1, 1895, authorizing the aldermen of Providence to direct an owner of land to destroy a privy vault thereon within 10 days, and, on his failure to comply therewith, authorizing a fine from $5 to $20 for each day of noncompliance, and after 60 days empowering the aldermen to destroy the vault, provides reasonable methods for the abatement of a nuisance, and is not unconstitutional.

3. An owner has no constitutional right to notice before the passage of an order by the alder men of Providence that he should destroy a privy vault on his premises pursuant to Pub. Laws April 25, 1889, c. 777, as amended by chapter 1407 of March 1, 1895, as such a nuisance may be summarily abated.

4. Pub. Laws April 25, 1889, c. 777, as amended by chapter 1407 of March 1, 1895, providing for the abatement of privy vaults in the city of Providence, is valid, though the vaults are nowhere formally declared to be a nuisance, especially in view of section 3, declaring that the provisions of the act were made "in the interest of the public health of the city."

5. Pub. Laws April 25, 1889, c. 777, as amended by chapter 1407, § 3, of March 1, 1895, providing for the destruction of a privy vault pending an appeal by the owner from the order of the board directing him to fill up and destroy the vault, is constitutional, as the statute authorizing such appeal allows considerable delay, and in such matters summary action is a proper exercise of power.

Appeal from common pleas division, Providence county.

Action by board of aldermen of the city of Providence against Ruth M. Harrington and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Henry J. Spooner and Cooke & Angell, for appellants. Francis Colwell and Albert A. Baker, for appellees.

ROGERS, J. The sole question in this case before the court at this time is as to the con38 A.-1

stitutionality of Pub. Laws R. I. c. 777, of April 25, 1889, as amended by chapter 1407 of March 1, 1895, and which act, as amended, is as follows:

"Section 1. The board of aldermen of the city of Providence may compel any abutting owner or occupant of land upon any street in said city in which there is a sewer to connect the drainage of his land and premises with such sewer and may direct said owner or occupant to fill up and destroy any cesspool, privy-vault, or other arrangement for the reception of drainage.

"Sec. 2. Upon the service of any order or direction or a copy thereof upon any owner or occupant of such land to connect the drainage as aforesaid or to fill up or destroy, any cesspool, privy-vault, or other arrangement for the reception of drainage, such owner or occupant shall comply with such order or direction within ten days from the time of service of such order.

"Sec. 3. In case the owner or occupant to whom such order shall be directed shall neglect or refuse to comply therewith within ten days after the service thereof upon him, such owner or occupant shall be fined not less than five nor more than twenty dollars for each subsequent twenty-four hours during which he shall neglect or refuse to comply therewith, and in case such neglect or refusal shall continue for sixty days after the service of said order, said board of aldermen may cause any cesspool, privy-vault, or other arrangement for the reception of drainage upon the land of such owner or occupant to be filled up and destroyed, and the pendency of any appeal from any of such orders or doings of said board shall not affect the power of said board after the expiration of said period of sixty days to cause the same to be forthwith filled up and destroyed, the aforegoing provisions being in the interest of the public health of said city.

"Sec. 4. This act shall take effect from and after its passage and all acts and parts of acts inconsistent herewith are hereby repealed."

On August 1, 1895, the board of aldermen of the city of Providence passed the following resolution: "Resolved, that Ruth M. Harrington, wife of Wm. W., be, and she hereby is, ordered to connect the drainage of the land

and premises situated on West Clifford street in this city, bounded and described as follows: *** with the sewer in said West Clifford street, and that the said Ruth M. Harrington be, and she hereby is, directed to fill up and destroy any and all cesspools, privy vaults, or other arrangements for the reception of drainage on said premises, the said Ruth M. Harrington being the owner, occupant of said premises, within ten days from the time of service of this order, or of a copy thereof, upon said Ruth M. Harrington." August 3, 1895, a copy of said resolution or order was duly served upon Mrs. Harrington, and, an appeal from said proceedings of the board of aldermen having been taken by Mr. and Mrs. Harrington,-for both husband and wife joined in the appeal,-and, a claim for jury trial having been made, trial was had before the common pleas division, in which, upon the admissions of the appellants, a verdict was directed by the court ratifying and confirming the said order of the board of aldermen. At the jury trial it was admitted and agreed that Mrs. Harrington was the owner of the premises described; that there was a privy vault used for the reception of human excrements upon said premises; that West Clifford street was a sewered street; that said board of aldermen passed said order August 1, 1895; that said order was duly served on Mrs. Harrington August 3, 1895, and that before the making of said order Mrs. Harrington had no notice to appear before the board of aldermen, and show cause why said order should not be made against her in the premises, nor any opportunity for a hearing. The appellants claimed that said chapter 777, as amended by chapter 1407 of the Public Laws, was unconstitutional. They also claimThey also claimed that, although there was a privy vault on said premises, used for the reception of human excrements, yet it was not used for the reception of drainage in the sense in which they claimed the word was intended in the statute; and they offered to prove that on August 1, 1895, and long prior thereto, said privy vault was not kept and maintained as a nuisance, but was kept in good order and condition, and so as not to be prejudicial to the public health; and also that the drainage of said premises was on and before August 1, 1895, and ever since, connected with the sewer on West Clifford street; the broad claim of the appellants being the right to put in evidence to the jury as to the condition of that privy vault and of the premises and surroundings, in order that the jury might determine (as it was contended that it should determine) that an order of the kind aforesaid should not be passed against the said Ruth M. Harrington. The presiding The presiding justice ruled said statute constitutional as required by law, ruled out the evidence offered by the appellants, and directed the jury, upon the admissions made, to find a verdict ratifying and confirming the said order; whereupon the constitutional question was duly certified to the appellate division for determination, and the appellants petitioned for a new trial

for the alleged misrulings upon the evidence and upon ordering the verdict; but the question now before this division, as stated above, is solely upon the constitutionality of said statute, the whole travel of the case in the common pleas division having been given merely to elucidate the constitutional aspect of it.

The appellants claim that chapter 777, Pub. Laws, and chapter 1407, in amendment thereof, are unconstitutional, because no provision is made for notice to the owner or occupant of premises, and no opportunity for hearing thereon is given to the owner or occupant, before the passage of the order or direction by the board of aldermen, and because, also, by the provisions of section 3, c. 1407, the pendency of an appeal will not affect the power of the board to fill up and destroy the privy vault of such owner or occupant of the premises. This statute, "being in the interest of the public health of said city,"-to quote the concluding words of section 3 of it,-is clearly intended to be an exercise of what is called the "police power," and if it is a proper exercise of such power, both as to subject-matter and as to methods, then its constitutionality cannot be successfully impugned.

ri

"Rights of property," says Chief Justice Shaw in Com. v. Alger, 7 Cush. 53, 85, "like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and limitations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. pedient. This is very different from the right of eminent domain,-the right of a government to take and appropriate private property to public use, whenever the public exigency requires it,-which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power,-the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. Nor does the prohibition of such noxious use of property-a prohibition imposed because such use would be injurious to the public, although it may diminish the profit of the owner-make it an appropriation to the public use, so as to entitle the owner to compensation. If a landlord could let his building for a small-pox hospital, or a slaughter house, he might obtain an increased rent. But he is restrained; not because the public have occasion to make the like use, or to make any use, of the property, or to take any benefit or profit to themselves from it; but because it would be a noxious

use, contrary to the maxim, 'Sic utere tuo ut alienum non lædas.' It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is, therefore, not within the principle of property taken under the right of eminent domain." In the words of Mr. Justice Harlan in the Slaughter House Cases, 16 Wall. 36, 62: "This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property." Chief Justice Redfield, in Thorpe v. Railroad Co., 27 Vt. 140, 149, 150, uses this language: "The police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state;

* and persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state; of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be, made, so far as natural persons are concerned." To quote Mr. Justice Harlan again, and this time in Powell v. Pennsylvania, 127 U. S. 678, 685, 8 Sup. Ct. 992, 1257: "The power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has in the employment of means to that end is very large." "Police regulations," says Mr. Justice Wilde in Baker v. City of Boston, 12 Pick. 183, 193, "to direct the use of private property so as to prevent its proving pernicious to the citizens at large, are not void, although they may in some measure interfere with private rights without providing for compensation. * ** If by such regulations an individual receives some damage, it is considered as damnum absque injuria. The law presumes he is compensated by sharing in the advantages arising from such beneficial regulations." In regard to a Massachusetts statute authorizing the city council of Boston to raise the grade of certain lands in order to secure a complete drainage thereof, Mr. Justice Morton, in Nickerson v. City of Boston, 131 Mass. 306, 308, said: "It belongs to that class of police regulations to which private rights are held subject, and is founded upon the right of the public to protect itself from nuisances, and to preserve the general health. The authority of the legislature to pass laws of this character is too well settled to be questioned." See, also, Com. v. Roberts, 155 Mass. 282, 29 N. E. 522. Unwholesome trades, slaughter houses, operations offensive to the senses, the burial of the dead, drainage, the deposit of powder, and the building with combustible materials,

in thickly settled communities, are some of the numerous matters to which the police power has been applied, but the list is too long to make an attempt at enumeration practicable. See 18 Am. & Eng. Enc. Law, 748; 2 Kent, Comm. 340; Cooley, Const. Lim. 712 et post.

Is the subject-matter of said chapter 777, as amended by chapter 1407, Pub. Laws R. I., a proper one for the constitutional use of the police power? And by this we mean not merely the regulation of the use of privy vaults, cesspools, and other arrangements for the reception of drainage, but the absolute abatement of them under certain conditions, regardless of the manner in which they may chance to be kept. It is sufficient for us in this inquiry to consider privy vaults alone, as it is agreed on all hands that it was a privy vault only that was, as a matter of fact, obnoxious to the statute in the case at bar, and that, too, one used solely for the reception of human excrements; for a statute may be unconstitutional in part and constitutional in part, and, while the unconstitutional part may be void, the constitutional part may be valid, and may be carried into effect, the test in such cases being whether the parts are so interwoven and interdependent that they can stand only as a whole. State v. Clark, 15 R. I. 383, 5 Atl. 635; In re Constitutional Amendment, 16 R. I. 754, 758, 16 Atl. 706; State v. Tonks, 15 R. I. 385, 5 Atl. 636.

The receptacles known as privy vaults, for what might not inaptly be called the drainage of the human body, viz. human excrements, have in thickly settled communities been a very common matter for the exercise of the police power. It is common knowledge that the condition in which they shall be kept when allowed to exist, their construction, their locality, the time and manner of removing their contents, have, especially in cities, been subjected to sharp police regulation. Few things are more disagreeable to the senses or more injurious to health than the noisome smells too frequently arising from them. Their very presence is a menace to comfort and health, and a source of apprehension to the neighborhood. The best that can be done so long as they exist is to reduce the dangers within them to the minimum, and which, if vigilance be relaxed, soon loom up to the maximum. Wood, in his treatise on Nuisances, § 579, says that privies are regarded as prima facie nuisances; and the same words are used by the court in Wahle v. Reinback, 76 Ill. 322, 326. In Com. v. Roberts, 155 Mass. 281, 282, 29 N. E. 522, which involved the constitutionality of a statute providing under a penalty that certain buildings in Boston "situated on a public or private street, court, or passageway, in which there is a public sewer, and every building connecting with any sewer, shall have sufficient water-closets connected with the sewer, and shall not have a cesspool or privy, except where in the opinion of the board of health it

can be allowed to remain temporarily, and then only as said board shall approve." Mr. Justice Lathrop, in delivering the opinion of the court, said: "There can be no doubt that the statute in question is within the constitutional powers of the legislature as a police regulation. It is an act for the preservation of the public health, and relates to the disposal of one of the most dangerous forms of sewage." But it is contended on the part of the appellants that the privy vault itself, when properly used, is neither a nuisance nor injurious to health or comfort; that it only becomes so when not properly cared for, and therefore that its abuse, or improper use, alone makes it subject to police regulation and repression. The storage of gunpowder, the existence of buildings of such character and condition as to make them liable to catch fire, in thickly settled neighborhoods, have frequently been the subject of police regulation and repression, but neither would do any actual harm until carelessness, accident, or some unforeseen agency set them on fire, an event that might never happen; and yet the menace and the apprehension caused by their presence have been frequently deemed sufficient to justify their removal under the police power.

The reasonable exercise of human power must always be exerted within reasonable human limitations. It is one of the laws of human nature that there shall be, from time to time, rejections from our persons of unassimilated matter, and this higher law must be recognized in judging of the reasonableness of any human legislation in any wise pertaining to it; hence the necessity of some sort of provision for these rejections is always recognized by legislatures and courts. The crudest and most objectionable provision for this in civilized countries is presented by a great army in the field in time of war; while the most perfect and least objectionable provision for it is afforded in those towns and cities possessing the best water and sewage systems, thus making possible what are called the "modern conveniences." It is common knowledge that the city of Providence has expended vast sums of money in perfecting its water and sewer systems, thus making possible what was before impossible in the way of eliminating the menace presented and the apprehension aroused by the existence of privy vaults, and the statute in question operates merely to remove an objectionable receptacle where an opportunity exists of supplying a means of getting rid of the objectionable matter. It operates to repress privy vaults under reasonable limitations, for the land on which the privy vault to be repressed was situated must abut upon a street in which there was a sewer. Then, if there was no connection with the sewer from that land, 10 days after notice given were allowed to make the proper connections and comply with the statute. Then, if the owner or occupant neglected or refused to comply, a penalty of not less than five nor more than twenty dollars for each subsequent 24 hours during

which he should neglect or refuse to comply therewith was imposed; and, if this accumulating penalty, this milder means, failed of accomplishing the result, then the board of aldermen, as a last resort, could cause the privy vault to be filled up and destroyed. The pressure of power was applied at first very moderately, and free from harshness, gradually increasing until it might well be claimed that the fear of a money penalty would not repress the evil, and only culminating at last in the actual repression by the board when the owner or occupant had neglected or refused to act. Is notice to the owner or occupant before the passage of the order by the board of alderman, under the statute in question, constitutionally necessary, or is it requisite that he should have what is called "his day in court," or a trial by jury, before the passage of said order, or before the privy vault can be filled up and destroyed? Senator Edmonds, in Hart v. Mayor, etc., of Albany, 9 Wend. 571, 609, says: "Much stress was laid by the counsel for the appellants upon the fact that the exercise of the right claimed by the respondents would result in the destruction of their property without the benefit of a trial by jury, and that, consequently, the ordinance in question was a violation of the constitution and the bill of rights. The same objection would apply to the dejection of every nuisance, yet nothing is clearer or better settled than the right to exercise this power in a summary manner, not only where the whole community is affected, but where a private individual alone is injured. It is a right necessary to the good order of society, and the reason why the law allows this private and summary method of doing one's self justice is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice."

In King v. Davenport, 98 Ill. 305, the question was as to the validity of an ordinance of the city of Jacksonville, it having been empowered to pass the same, to establish fire limits, and to declare the building or repairing of buildings with combustible materials within the fire limits a nuisance, and to provide against the erection of buildings, roofs, or cornices with other than fireproof material within said fire limits, and which provided that if the offender, upon reasonable notice, failed to remove such wooden building, or wooden part of such building, the city marshal, upon the written direction of the mayor, should remove or tear down such building, or such part thereof as may be necessary. The ordinance further provided that the offender should be subject to a fine of $100 for each week he failed to remove such wooden building, or wooden part thereof, and that, if the city caused the removal, the expense of the removal might be recovered of the offender. The plaintiff's testatrix violated this ordinance by taking off an old and out of repair shingle roof from her

building, situated within the fire limits, and putting thereon, without permission, a new shingle roof. She failing to remove the same upon due notice, the roof was removed by the city marshal in conformity with the ordinance, whereupon she brought an action of trespass against the mayor and marshal of the city for the removing of the roof, and, dying since the bringing of the action, her executor was substituted as plaintiff. The defendants justified under the ordinance, and the sole question was as to the validity of the ordinance. The court, in its opinion, said, inter alia (page 314 et post): "There can be no doubt, it seems to us, that the ordinance in question was a police regulation, proper, and made in good faith, 'for the purpose of guarding against the calamities of fire' in a populous neighborhood, and we must regard it as an entirely reasonable regulation. There is no more frequent or admittedly proper exercise of the police power than that of the prohibition of the erection of buildings of combustible materials in the populous part of a town, and the only means of making such prohibition effectual is by summary abatement. Every moment's delay in the removal of the nuisance is constant exposure to danger. Before any judicial inquiry and hearing could be had in the matter, the whole evil sought to be guarded against might be produced. The imposition of a penalty would but punish the offender; it would not remove the source of danger. This latter is the thing which the necessity of the case requires, and immediate abatement is the only competent remedy."

City of Salem v. Eastern R. R., 98 Mass. 431, was an action to recover money expended from the city treasury by its board of health to remove a nuisance, which removal, being the digging of a canal for the abatement of a nuisance in a mill pond, was made under an ordinance of the city authorized by a statute of the state. Mr. Justice Wells, in delivering the opinion of the court, on page 442 et post, used this language: "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, and 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 sections 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." After citing various cases, and enlarging upon the reasons for notice not being required, viz. the necessity for summary action, the fact that delay for hearing the parties might defeat all beneficial results from an attempt to exercise the power conferred upon boards of health, etc., the learned judge concludes on this point as follows (page 444): "The necessity of the case, 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."

In Blair v. Forehand, 100 Mass. 136, 139, where the question was as to the validity of a statute authorizing the summary killing of unlicensed dogs, Mr. Justice Gray said: "All rights of property are held subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the constitution of the commonwealth, may think necessary for the preventing of injuries to the rights of others, and the security of the public health and welfare. In the exercise of this power the legislature may not only provide that certain kinds of property (either absolutely, or when held in such a manner or under such circumstances as to be injurious, dangerous, or noxious) may be seized and confiscated upon legal process after notice and hearing; but may also, when necessary to insure the public safety, authorize them to be summarily destroyed by the municipal authorities without previous notice to the owner,as in the familiar cases of pulling down buildings to prevent the spreading of a conflagration or the impending fall of the buildings themselves, throwing overboard decaying or infected food, or abating other nuisances dangerous to health;" citing various authorities in support thereof.

In the celebrated Trinity Church Case (Health Dept. of City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, 47, 39 N. E. 833) Mr. Justice Peckham gave expression to this obiter dictum: "This is not the case of a proceeding against an individual on the ground of the maintenance of a nuisance by him; nor is it the case of an assumed right to destroy an alleged nuisance without any other proof than the decision of the board itself (with or without a hearing) that the thing condemned was a nuisance; nor is it the case of the destruc