A public hearing was granted by the Board of Health on June 27, 1898, and many competent experts and real estate owners testified to the intolerable conditions. Mayor Quincy attended the hearing and promised strong support. Commendable progress was made in vacating or destroying some of the worst slums for about three years. But the exercise of the power to “destroy” seems recently to have been paralyzed, perhaps, as a result of pending litigation.
The law grants two powers to the Board of Health to deal with these evils. Since 1850, chapter 108, tenements may be “vacated” if adjudged unfit for human habitation. This power should be exercised only after thorough investigation and on deliberate judgment, setting forth true and sufficient causes. It may easily work grave injury to owners if exercised unjustly. Yet, when justly exercised, orders to vacate should be adhered to and not lightly rescinded because of political or other pressure. Observe that this power to vacate requires no destruction of the building and cannot justly prevent use of the vacated tenement for other fit purposes, not of human habitation.
In 1897, chapter 219, the power to destroy [the statute word is “remove”] buildings first appeared in Massachusetts. Its origin is interesting. The British “Housing of the Working Classes Act,” 1890 (53–54 Vict., chapter 70), sections 30–37, is the origin, so far as I know, of this new power “to order the demolition” of a “dwelling-house” “unfit for human habitation.” Section 38 enlarged this power and made it apply to “obstructive buildings,” thus condemning one building because it injures another building. It is surprising that any American lawyer could suppose that such a power would be sustained in America, where the unlimited powers of the British Parliament are much curtailed by constitutional safeguards.
Yet New York soon copied this British Act (1895, chapter 567, amended by 1897, chapter 57) in shape so condensed as to make its injustice more conspicuous. This act was enforced for a few years in the city of New York, till owners of property began to defend their rights in court. The suit of Dassori vs. the Health Department of New York has settled that this law cannot be enforced to its full extent.
“Proof that rear tenement houses, each five stories high, lighted only from a court on the west or front from five to eleven feet wide, and a space or opening of eleven inches wide at the southeast corner of the court, and a space on the east side of eight inches filled with all sorts of filth, occupied by 115 persons, showing a death-rate almost twice the normal one, damp, filthy, infested with vermin, and filled with foul smells, and by their construction interfering with the light which would otherwise have been enjoyed by tenement houses on the front of the lots, justifies a finding that the rear tenement houses are unfit for habitation, but does not necessarily establish the fact that they are not capable of being made fit for other uses to which the owner might lawfully put them, nor does it show that the nuisance could not be abated in any other way than by their destruction.
“The owner of a tenement house cannot be compelled to submit to its destruction, if it is on his own land, merely because some building adjacent to it is, by reason of its existence, deprived of proper ventilation.” (N. Y. Health Dept. vs. Dassori, Appellate Division Reports, Vol. 21, p. 348. October, 1897.)
Boston deserves no credit for the slovenly shape in which this faulty law was reproduced, 1897, chapter 219, closely following the language of the New York act. First the power to vacate is set forth, yet while covering the same ground as our ancient and well-tried statute (1850, chap. 108; Pub. Sts., chap. 80, sec. 24; Revised Laws, chap. 75, sec. 71), neither repeals nor amends it. Then follows the power to order “removed,” i. e., destroyed, a building irremediably “unfit for human habitation.”
Statute 1899, chapter 222, enlarged these powers of the Board of Health so that the order may be not merely to “vacate” a building “unfit for human habitation,” but to “cease to use” a building “unfit for use”; the power to order buildings destroyed remaining limited to those “unfit for human habitation.”
The suit (October, 1900) of Holland vs. Durgin et al. (Board of Health) has gone on appeal to the Supreme Court. It raises interesting questions as to this last statute, its constitutionality, the lawfulness of a decree to remove, without previous notice to or opportunity to be heard by the owner, as well as the lawfulness of an order to remove stables occupied by horses and sheds only for storage as “unfit for habitation” (sic), the statute language being “unfit for human habitation.”
The Board of Health is thus clothed with transcendent powers, whose exercise vitally affects the physical and moral welfare, especially of that large portion of the people who are lowest in the economic scale. These powers should only be lodged in the hands of men of strong character, sound judgment, sanitary experience and genuine love for the plain people. Yet the action of the Boston Board of Health has been characterized for many years past by mysterious apathy.