State v. Wilson

State v. Wilson.

The common la-\v is constructively repealed by a statute which revises the whole subject and is inconsistent with its continued operation.

The statute which imposes a penalty for occupying a building in the compact part of a town, as a slaughter-house, without license, does not repeal the common law relative to nuisances.

This was an indictment for a nuisance at common law; that E. M. Wilson, of, &c., on the 1st of June, 1858, and on divers other days and times, &c., at Pembroke, &e., with force and arms, near to a public street in P. aforesaid, called Pembroke street, being a common highway, &c., and near the dwelling-houses of divers citizens, &c., did unlawfully and without sufficient cause keep and maintain a certain slaughter-house, and a cellar under the same, and in said slaughter-house, he, the said E. M. W-, on, &c., did kill and slaughter large numbers of oxen, &c., and on, &c., did cast and throw the offals, &c., into the cellar aforesaid; and in the cellar aforesaid, during the times aforesaid, did keep a large number, to wit, fourteen hogs, and he the said E. M. W., on, &c., did feed said hogs in the cellar, &c., upon the offals, &c., by means whereof divers noisome, unwholesome, and noxious smells and stenches, during, &c., and large quantities of noxious and unwholesome smokes and vapors, on, &c., were then and there emitted, &c., from said slaughter-house, and the cellar under the same, &c., and the air in the neighborhood thereof, and for a great distance around, on the days, &c., was thereby greatly impregnated, and filled with many noisome, &c., smells, &c., and has been corrupted and rendered very unwholesome, &c., to the great damage and common nuisance of all the good citizens of this State, then and there inhabiting, &c., in evil example, &c., contrary to the law, &c., and against the peace, &c.

The defendant moved to quash the indictment, on thé ground that the statute takes away the common law remedy. The court overruled the motion, and a verdict of guilty, being returned, the defendant moved for an arrest of judgment, for reasons appearing upon the case.

Minot $ Mugridge, for the respondent.

The point raised in this case was decided in favor of the1 respondent in State v. Blake, Merrimack, 1847. That was an indictment at common law for a similar offense; the same motions were made as in this case, and upon the same grounds; they were sustained by the superior court, and the respondent was discharged.

Chapter 119 of the Revised Statutes covers the ground of nuisances of the character of those charged in this indictment., It gives the health officers power to determine what are nuisances, with full power for their prevention and removal, enforced by specific penalties. Section 8 provides for the punishment of the offense here charged; and chapter 211 provides for the recovery of the penalty, and limits the time of prosecution.

"Where a statute revises the whole subject, makes that a qualified offense, which was before absolute, limits the time and degree of punishment, and where the same purpose is to be accomplished, that of restraining the offense by punishment, the statute must be deemed a constructive repeal of the common law. Commonwealth v. Cooley, 10 Pick. 37.

Chapter 119, section 8, authorizes the acts charged, under the permission of the health officers. See Commonwealth v. Chapin, 5 Pick. 199; Jennings v. State, 17 Pick. 38; State v. Hyde, 11 Conn. 541; Trustees v. King, 12 Mass. 545; Leighton v. Walker, 9 N. H. 59; Wakefield v. Copp, 37 N. H. 295. The time of prosecution is limited. Commonwealth v. Kimball, 21 Pick. 373; State v. Smith, 7 Conn. 428. A distinction is to be made between statutes defining offenses, and prescribing punishments, and those relating to or affecting private rights. In the latter a more strict construction prevails. Burnham v. Hotchkiss, 14 Conn. 310; Sprague v. Birdsall, 2 Cow. 420; Barden v. Crocker, 10 Pick. 388. So, also, between those statutes, which give the same general form of remedy as the common law, and those which provide a different punishment. Gooch v. Stevenson, 13 Me. 371; Commonwealth v. Ruggles, 10 Mass. 390.

There are a variety of decisions upon the point, when and how far a statute operates as a repeal of the common law or a previous statutp, or are only cumulative to it. The distinctions suggested reconcile many of them.

We have not found any case, where a statute making any act a qualified offense, has not been a repeal of a prior statute or the common law, making the same act an absolute offense.

Fowler, Solicitor, for the State.

The motion to quash was properly overruled, since an indictment for nuisance is never quashed on motion. Anon., 1 Vent. 370; Regina v. Wigg, 2 Salk. 460; S. C. 2 Ld. Raym. 1063; Lyton’s case, Cro. Car. 584; Rex v. Inp. of Yarton, 1 Sid. 140; Anon., 12 Mod. 232 234; Rex v. Flint, 12 Mod. 242; Rex v. Bracy, 12 Mod. 99; S. C. Comb. 371; Anon., 12 Mod. 502; Rex v. Sellinger, 12 Mod. 413; Com. Dig., Indict., H; Vin. Ab., Indict., S, 2, 4; Dacy v. Clinch, 1 Sid. 54.

The motion in arrest of judgment should be denied. There is nothing in the provisions of chapter 119 which, either in express terms or by necessary implication, repeals the common law". The rule is thus laid down by Sergt. Williams (1 Saund. 135, n. 4), “ Where' an offense was antecedently punishable by a common law proceeding, as by indictment, and a statute provides a particular remedy, there such particular remedy is cumulative, and proceedings may be had either at common law, or under the statute.” 1 Russ Cr. 50; Whart. Cr. L. 81; Queen v. Wigg, 2 Salk. 460; 2 Ld. Raym., 1163; Rex v. Carlisle, 3 B. & Ald. 161; Rex v. Woolston, 2 Stra. 834; Turnpike v. People, 15 Wend. 268; Bronson, J. See, also, Rex v. Robinson, 2 Burr. 799; Rex v. Harris, 4 D. &. E. 202; 2 Hale P. C. 191; 2 Co. Inst. 200; Com. Dig., Action upon Stat. (C); Rex v. Balme, Cowp. 648; State v. Jesse, 7 G. & J. 290; State v. Moore, 9 Yerg. 353; Crittenden v. Wilson, 5 Cow. 165; Almy v. Harris, 5 Johns. 175; Turnpike v. Coventry, Johns. 10, 389; Rex v. Bayall, 2 Burr. 832; Hartley v. Hooker, Cowp. 524; Rex v. Wright, 1 Burr. 543; Faulkner’s Case, 1 Saund. 250, n. 3; Rex v. Mariott, 4 Mod. 144; [S. C. Carth. 263; Rex v. Greep, 5 Mod. 348; Rex v. Bradford, Comb. 304; Stiles v. Laird, 5 Cal. 120; Rex v. Mariott, 1 Show. 398; 2 Hawk. P. C. 211, ch. 25, sec. 4; Rex v. Dixon, 10, Mod. 336; Burgin’s Case, 1 Vent.; 1 Sid. 40; 2 Keble 477. Statutes in derogation of the common law, are to be construed strictly; the doctrine of repeal by implication, is not favored. It will not be held that a prior law, whether statute, or common, is repealed by a statute containing no express words to that effect, and no negative words, unless the implication Í3 so strong as to leave no reasonable doubt that such was the intention of the Legislature. U. S. v. Twenty-five Cases of Cloths, Crabbe (U. S.) 856; George v. Skeates, 19 Ala. 738; Brown v. Miller, 4 J. J. Marsh. 474; Hale v. Barton, Dudley (Geo.) 105; Smith v. Moffatt, 1 Barb. 65; Young v. McKenzie, 3 Kelly 31; Schuyler v. Mercer Co., 4 Gilm. 20; Bruce v. Schuyler, 4 Gilm. 221; State v. Woodside, 9 Ired. 496; Bush v. Republic, 1 Texas 455.

State v. Blake, said by the defendant to have been decided in this county in 1847, we have no knowledge of, but understand it is not to be reported; and if decided on the ground it is said to have been, it ought to be overruled.

An examination of the provisions of chapter 119, will satisfy the court that it was not intended to substitute those provisions for the common law relative to nuisances. The original act of 1799 related to Portsmouth. The Revised Statutes made it general. Not a word negatives expressly or impliedly the common law liability of persons maintaining nuisances to indictment and fine, or of the nuisances to be abated.

Two sections, 8 and 9, are taken from a general act relating to nuisances, passed in 1792. (Stat. 1830, 159.) The second section of the act of 1792, and the 8th of chapter 119, provided for licensing persons to occupy buildings in the compact parts of towns for slaughter-houses, &c., as they surely may be used, without detriment to the public health, and without creating any nuisance. The Legislature never designed to license any body to maintain a nuisance. The defendant’s position is in substance, that when an individual obtains a license from the health officers to occupy a building as a slaughter-house, &c., he is virtually authorized to create and maintain a nuisance. No argument is necessary to show the absurdity of such a construction.

The authorities cited for the defendant do not sustain his position; most of them, carefully examined, are inconsistent with it.

The 119th chapter of the Revised Statutes was not designed to cover the whole subject of nuisances. It is limited to nuisances injurious to the public health. But many things are nuisances which are not actually unwholesome, as, for instance, a smell, not injurious to health, may render life and property uncomfortable. Rex v. White, 1 Burr. 338. So of noises. Rex v. Smith, 1 Stra. 704. Obstructions to highways and public watercourses, and disorderly houses are nuisances. To these this statute has no application. The defendant rests his argument mainly on the 8th section of chapter 119. But that section is limited to slaughterhouses, &c., in the compact part of a town, making no provision for licensing or punishing them elsewhere. The health officers can not license nuisances elsewhere, and slaughter-houses may be so managed out of the compact part of á town as to be a nuisance. The whole subject, even of slaughter-houses, therefore, is not embraced in the statute.

The present indictment is not for keeping a slaughter-house and maintaining a nuisance within the compact part of a town, but near a common highway, and near the dwellings of divers citizens. The health officers can not license a slaughter-house thus situated, so that upon his own theory his position falls to the ground.

It is believed statutes substantially similar-to those of chapter 119 have existed in Massachusetts for more than sixty years, and we can not. learn that any question has arisen there, or here, except in State v. Blake, of the liability of maintainers of common nuisances to indictment at common law, though indictments for such offenses have been common. Commonwealth v. Brown, 13 Met. 365; Commonwealth v. Smith, 6 Cush. 80.