Commonwealth v. Alden

Mobton, C. J. It is the duty of the hoard of health of a town to examine into all nuisances, sources of filth, and causes of sickness within its town, and it has authority to order the owner or occupant of any premises on which the same exists to remove it, after notice served upon such owner or occupant. The statute provides that such order shall be in writing, and may be “served by any person competent to serve a notice in a civil suit.” Pub. Sts. o. 80, §§ 18-22. It is not necessary that the notice should be served by an officer, though he may properly serve it. Notices in civil suits may often be-served by interested parties; but, in the case before us, the constable who served the notice was not an interested person, and his service is not vitiated because he was one of the board of health. The defendant contends that the order and notice was void, because it directed him to remove his “ hogs outside the limits of the village.” It may be that the board of health would not have the power to limit the defendant to the removal of his hogs outside the limits of the village as the only mode of abating the nuisance. But it did not attempt to do this. The order and notice contains a sufficient direction to the defendant “ to abate the said nuisance on your estate, .... within forty-eight hours from the service hereof.” This is a good order, which the defendant refused to obey; and we do not think that it is rendered void by the addition of the further direction to remove the hogs. The defendant could have protected himself by abating the nuisance in any effective way. The defendant further contends that the complaint cannot be maintained, because it should have been made by the town treasurer, and also because it does not allege that it is made by the complainant as agent of the board of health. The statute expressly provides that “ an agent appointed to make sanitary inspections may make complaint in cases of violation of any law, ordinance, or by-law relating to the public health in a city or town.” Pub. Sts. c. 80, § 16. It was shown that Reccord, the complainant, was duly appointed as such agent, the right of the board of health to amend its records to make them conform to the truth being too clear to require any discussion. As such agent, he had the right to institute this complaint. While it is true, as a general rule, that the [118] record of an inferior court must show all the facts necessary to give it jurisdiction, yet we think that the omission to allege that Reccord was an agent of the board of health, he being in fact such agent, was at most a formal defect, which the defendant could only avail himself of by a motion to quash. Pub. Sts. c. 214, § 25. Exceptions overruled.