Commonwealth v. Yost

Opinion by Orlady, J., The indictment in this case contains three counts, viz : (1) For maintaining a nuisance under section 73 of the Crimes Act of March 31, 1860, P. L. 382; (2, 3) for refusing to obey an order of the state board of health to abate and remove a nuisance under the Act of June 3, 1885, P. L. 56. The uncontradicted evidence shows that the defendant erected and maintained a privy on the bank of a natural stream of fresh water in the borough of Glen Rock, which is situated about twelve miles above the pumping station of a water company and which supplies the city of York with water for drinking and domestic purposes. That the privy is so located that human dejecta and excrementitious matter are deposited in the bed of the stream, and by the natural flow of the water in the channel they are carried down the stream into Codorus creek. That pollution of drinking water by human faeces is likely to produce disease in those who use the water and the living germs of dysentery, typhoid fever, and other diseases in such matters may be and have been carried in running water from twenty to thirty miles. That there had been nineteen cases of typhoid fever in Glen Rock prior to this prosecution, and shortly afterwards a number of persons in the city of York were affected with the same fever. It appears that fifty years prior to the trial there were three or four houses located on this mountain stream and from this nucleus has grown the borough of Glen Rock, though the date of its incorporation is not given. — 339 — The defense interposed to the first count was, that the stream on which the privy was located was a public and common sewer of the borough and was used as such in a lawful manner, in support of which it was shown, that where a public street crossed the stream it was covered by a bridge that had been constructed by the borough; that at other points property owners had erected their buildings on and over the stream; and that on one occasion when some flood débris had accumulated in the channel the street commissioner had removed it to prevent the backing of water upon the streets. It was also shown that the borough had enacted a health ordinance, as suggested by the state board of health, in which it was provided: “ Section 13. The sewerage from each building on every street provided with a common sewer shall be conducted into said sewer,” and the defendant was permitted to testify under objection that he believed he was required and compelled under that section to empty the privy deposits into the stream, and that the stream was spoken of as Manchester street sewer. The court submitted to the jury the question whether or not the stream was a public sewer of the borough of Glen Rock. A water course does not lose any of its characteristics because houses are built on its banks, or because they increase in numbers so as to become a borough. It- was not shown that this borough had any sewage system or had exercised any supervision or control over this stream, or that any money had ever been expended in maintaining it. There cannot be a public or common sewer that has not been constructed and maintained by the municipality and that is not subject to municipal control. The trifling emergency work done by this borough to relieve its streets of the danger of overflow was not evidence of any municipal duty to maintain it: Munn v. Pittsburg, 40 Pa. 364. A municipal corporation is nothing more than an aggregation of persons and it cannot be that liability is wholly lost in numbers; men, whether as individuals or communities, have duties to perform which lie at the foundation of responsibility: Philadelphia v. Gilmarten, 71 Pa. 140. The term sewer, as generally used and understood in law, denotes a conduit constructed and maintained by a municipality or by its authority, by means of which cities and towns are drained of superfluous waters, filth and other refuse matter: — 340 — Bouvier’s Law Dict. title “ Sewers; ” 6 Am. & Eng. Ency. of Law, 2. The power to construct sewers does not impose upon the corporate authorities an obligation to exercise the power: Carr. v. Northern Liberties, 35 Pa. 324. From all that appears in this case, the abutting property owners had riparian rights in and to the stream and none other, and as such the defendant had no right to pollute the water as it passed his property. The health ordinance could not be construed to mean that the privy was a building on a street provided with a common sewer, or that this fresh water stream was a common sewer. The 9th section of the ordinance prohibits the construction or maintenance of a privy or cesspool within 150 feet of any source of water used for drinking or culinary purposes. This ordinance was enacted to carry out and more effectually to enforce the regulations of the state board of health. The wise provisions contained in these regulations were not intended for the exclusive benefit of Glen Rock borough, and it would be a strange construction indeed which would justify this defendant, or, as he claims, would compel him to do an act within the borough which in all probability would contaminate the water for those who had a right to use it below the borough. It is difficult to imagine a more injurious source of disease or a more grave offense against the public health than to place in a natural stream of fresh water in close proximity to a source of water supply human dejecta and excrement with the accompanying poisonous and disease producing germs, knowing that the natural course of the stream leads direct to a city’s pumping station. It is just such disregard of law and duty that the legislature, and state board of health with its local branches all over the state, have endeavored to prevent, and to just such conduct our eminent physicians and specialists have traced the direct source of a number of loathsome and fatal epidemics. To be a public nuisance it is not necessary that it should injure every one by its malign influence, but that it be such as would naturally produce injury to all who have an interest in the water for domestic purposes. No prescription or usage can justify the pollution of a stream by the discharge of sewage in such a manner as to be injurious to the public health. Lapse of time will not legalize a public — 341 — nuisance: Philadelphia’s Appeal, 78 Pa. 33; Com. v. McDonald, 16 S. & R. 390; Philadelphia v. R. R. Co., 58 Pa. 253; Johnston v. Irvin, 3 S. & R. 292; Good v. Altoona, 162 Pa. 493. To deposit in a natural water course, in close proximity to a source of supply from which the water is used for domestic purposes, the noisome and offensive matter described hr the uncontradicted evidence in this case is a public nuisance, and it should have been so declared by the court. The use of a privy, the percolations of which contaminate the water of a well of an adjoining landowner, used for household purposes, is a nuisance per se, not justifiable on the ground of necessity: Haugh’s Appeal, 102 Pa. 42. It is indictable at common law to throw the carcass of an animal in a well thereby corrupting it: State v. Buckman, 8 N. H. 203; Kelley v. New York, 27 N. Y. Supp. (Sup. Ct.) 164; Ball v. Nye, 99 Mass. 582; s. c. 97 Am. Dec. 57; Brown v. Illius, 71 Am. Dec. 49. The state board of health was created for the better protection of life and health, and to prevent the spread of contagious and infectious diseases in the commonwealth. It is given “ power to enforce such regulations as will tend to limit the progress of epidemic diseases.” In places where there is no local board of health, and in cases where boards of health or health officers exist, but the sanitary laws or regulations are inoperative, it “ shall have power and authority to order nuisances or the cause of any special disease or mortality to be abated and removed, and to enforce quarantine regulations, as said board shall direct.” Pursuant to the power given by the act of assembly, the state board, at a regular meeting on July 5, 1885, appointed Dr. Benjamin Lee as secretary and adopted regulations through which the aim and purpose of the legislation was to be effected. In regard to nuisances it was enacted, viz: “ Whenever complaint is made in writing to the secretary of the board of the existence of a nuisance, he shall forthwith, as executive officer of the board, investigate the matter and shall determine whether the alleged nuisance is detrimental to the public health, or the cause of any special disease or mortality, and in case he shall so find, then he shall notify the owner, agent or occupier of said premises, in writing of such finding, and the executive officer shall thereupon order and direct the abatement and — 342 — removal of the same within — days; and in the event of the failure of said owner, agent or occupier of said property to abate and remove the nuisance, then the executive officer may proceed to abate and remove the same, and may employ all the force necessary to do so, and shall proceed by warrant, arrest and indictment, to convict the party failing to obey said order of abatement and removal.” The commonwealth offered to prove that a complaint was made to the state board of the existence of this privy on a tributary of Codorus creek, and that on June 28,1898, after an examination of the premises by a properly appointed officer of the state board, the defendant was notified and required to abate and remove it within ten days, and was specially notified as follows : “ In order to effectually abate and remove the nuisance herein referred to, it is hereby ordered that you remove your privy to a distance from the stream that will prevent the drainage therefrom entering its waters,” which notice and order was signed by Benjamin Lee, M. D., as secretary and executive officer. This offer was overruled and the evidence excluded by the court for the reason that the board of health, as such, had never acted upon the complaint; that the notice was not given by the state board of health, but only by its secretary, the court holding that it was not such action as would sustain an indictment, under the act of 1885, for refusing to obey a notice. The legislature cannot delegate its power to make a law; but it can delegate a power to determine some fact or state of things upon which the law makes its own action depend. To deny this would stop the wheels of government: Locke’s Appeal, 72 Pa. 491. The state board is charged with the preservation of the public health, and is necessarily invested with large powers in the abatement of nuisances. The statutory requisites of the gentlemen who comprise this board, and who serve the public without moneyed compensation, show the legislative intent in securing the highest proficiency and interest in the preservation of the health and safety of the people of the state. The power and authority of the state board of health to order nuisances or the cause of special disease or mortality to be abated and removed is not limited to the action taken at the convened meetings of that body. The board is only an instrumentality of the commonwealth through which the purposes of — 343 — the act are to be effected. The grant of a general power carries with it, by necessary iihplieation, a grant of all the special powers which are necessary to effectuate the grant of the general powers. The act of assembly which created the state board of health designated the secretary as its executive officer. As such officer, with his duties defined by the by-laws and regulations, be is intrusted with the execution of the law, and of superintending its enforcement, and when he is conducting the business of the board, within the scope of his authority, he speaks for, acts for, and virtually is the board itself. The statute and the by-laws of the board, gave him ample authority to give the notice to this defendant and to “ proceed by warrant, arrest and indictment to convict the party failing to obey said order of abatement and removal.” Whether the defendant was justified in refusing to obey the notice sferved upon him by the executive officer of the state board depends upon the fact as to whether or not the privy as located was a nuisance, not only in the judgment of the executive officer of the state board, but in its being legally ascertained in court. The commonwealth cannot be expected to prove to an absolute certainty that disease producing germs are carried a given distance in a water course as it would be an exaction impossible of performance to require a chemical and microscopic analysis of the whole body of a stream of water. Such a fact is not capable of being demonstrated to a mathematical certainty and such a degree of proof is not demanded by the law. Whether a state of facts amounts to a nuisance is in many cases dependent on the opinion of witnesses, and a reasonable and probable exactness based on experience and scientific investigation is the most that can be expected in such cases. The reasonable doubt as to guilt, which is the defendant’s property, must arise out of the evidence, which prevents a jury from coming to a satisfactory conclusion, a doubt which causes a juror’s mind to pause and hesitate. But such a doubt must fairly arise out of the evidence, and not be merely fancied or conjured up. It must be an honest doubt, such a difficulty as strikes a conscientious mind and clouds the judgment. If the mind is fairly satisfied of a fact on the evidence as much so as would induce a man of reasonable firmness and judgment to ' take the fact as true and to act upon it in a matter of import — 344 — anee to himself, it would be sufficient to rest a verdict upon: Com. v. Cleary, 135 Pa. 64. It would be impossible to have the state board meet on the ground of an alleged nuisance to consider every complaint before deciding upon its abatement or removal. To require this would nullify andin validate the whole system. Aboard of health or a municipality has ample authority to declare to be a nuisance whatever is per se a nuisance at common law, and to abate it. The determination of a board of health that a nuisance exists is not final and conclusive, and when the cause is brought to trial, if the uncontradicted evidence shows it to be a nuisance per se, it should be so declared by the court as in the case of a pig sty, a fat rendering or bone boiling establishment and the like in the populous part of a city, and if not, the case should go to a jury for its ascertainment under proper instructions. The state board in a great state like Pennsylvania can only act by its agents and appointees, who speak for it by right of their appointment. The location and character of the alleged nuisance can be best ascertained by individual inspection, rather than incur the delay and expense incident to the meeting of a number of persons comprising a board. Under the facts in this case the state board is the final authority in deciding whether, in places where boards'of health or health officers exist, the' sanitary laws or regulations are inoperative, so as to order the abatement and removal of a nuisance. The defendant testified that he prepared the ordinance enacted by the borough, that he was a member of the local board of health and was the health officer of the borough at the time. Plis own interpretation of the regulations of the state board and of the ordinance cannot be the measure of his culpability and the state board should not be bound by the act of any such representative. Regard for the public welfare is the highest law, and it is not at all material that the complaint in the case was made by the York Water Company, but it should rather be considered in the light of a public benefactor instead of being found to be a prosecutor to have the costs imposed on it. The prosecution was grave in its character and was instituted at the instance of the state board of health. It was well worthy of an investigation for the good of the public. The water company was, no doubt, instrumental • in furnishing the state board of health the evidence necessary — 345 — to bring the case to trial, but this did not constitute it the prosecutor. It was not trifling, unwarranted or malicious in its character, and it was fully justified by the facts of the case. The assignments of error are sustained. The judgment of the court below is reversed and the verdict set aside. The record is remitted to the court below and it is ordered that the case be again tried.