A construction of § 13 is fundamental to a proper decision in this proceeding. Under that section a town council is given the power to decide where swine may be kept in the town to be fed on swill brought from any other town. Until the council designates such a place the section prohibits the keeping of swine in such manner. But this power cannot be arbitrarily exercised. The town council cannot, as it pleases in its own unlimited discretion, refuse to designate a place properly adapted to the carrying on of such a lawful agricultural pursuit. The power *Page 513 conferred upon it by § 13 is not the broad licensing authority exercised over otherwise unlawful businesses, such as the manufacture and sale of intoxicating liquor, poolrooms, theatres, shows, exhibitions and the like. There the licensing authority may grant or refuse a license in its discretion. ThayerAmusement Corp. v. Moulton, 63 R.I. 182. Here the power is over a lawful business which cannot be prohibited unless such prohibition is necessary to protect the public health or welfare. In other words, the validity of § 13, and of the exercise of authority under it, rests upon the police power.
Whether or not the conduct of a lawful business may be declared to be a menace to public health, or otherwise inimical to the public welfare, depends upon the nature and character of the place where it is to be conducted. Is it to be located in acommunity where a danger to the public health may be reasonably assumed from the nature of the business, or is it to be located beyond the borders of any community and therefore not so placed as to menace the public health? The determination of these questions is a judicial function which is to be exercised in the first instance by the town council, subject to review by this court for errors of law. If there is any evidence to support the findings of the town council they will not be disturbed on such review.
In the instant case there is no evidence that petitioner's premises are situated in or very near to any community. All the evidence is to the contrary, namely, that they are in the open country. In fact, there are but two dwellings in the general neighborhood of petitioner's premises, only one of which is reasonably near thereto. Within a radius of a mile in all directions there are only a very few widely scattered dwellings. The area is largely wild and uncultivated. The town of Smithfield as a whole is thinly populated except in the mill villages which occupy but a small part of its total area. According to a map of the town which is in evidence petitioner's premises are about a mile and a half distant from the nearest mill village. *Page 514
Unless the town council could find on that evidence that it was dangerous to the public health to allow the petitioner to keep swine to be fed on swill brought from any other town, it was its duty to designate his premises as a place on which swine could be kept in such manner, subject to any reasonable restrictions which it deemed necessary to impose. Under § 19 of chap. 601 the town council is expressly empowered "to regulate and control the construction and location of all places for keeping swine". (italics mine)
The town council either disregarded its duty or it misconceived its power under § 13. Instead of determining whether the petitioner's premises were situated in a community and were thus unsuitable, from the viewpoint of public health, for the use he intended to make of them, it decided the question before it on evidence of the manner in which he had been keeping swine on his premises and of the annoyance which he had thereby caused to two of his neighbors. In other words, it decided his application, not on any inherent unsuitability of the premises for the intended use on the ground of a menace to public health, but because it found that the petitioner was not a proper person to be allowed to keep swine there to be fed on swill brought from any other town.
The summary of the evidence in the majority opinion shows quite clearly that the town council had before it practically no evidence but that of the manner in which petitioner kept swine on his premises. While such evidence may have been relevant in a suit to enjoin a private nuisance, it had no relevancy in the instant proceeding where the sole question was whether the petitioner's premises could be designated, without danger to the health of the community, as a place where swine may be kept to be fed on swill brought from any other town.
The abuses which were disclosed by such evidence do not inhere in the keeping of swine to be fed on swill. Nor would they be necessarily incident to keeping swine on the premises in question and feeding them on swill brought from any other town. By exercising its regulatory powers under § 19 *Page 515 the town council could prevent such abuses from arising. Of course, offensive odors that may come from the raising of hogs on swill cannot be wholly banished, although they may be minimized. But such odors, like those from the barnyard and the cattle shed, are the normal, natural incidents of life in an agricultural area. The purpose of § 13 is certainly not to enable town councils to rid the countryside of such odors. Its only purpose is to enable town councils to safeguard public health by preventing the establishment in a community of swine keeping in the manner mentioned in § 13.
The total absence of any evidence from which the town council could reasonably find that petitioner's premises were situated in an ordinary community deprives its decision of any validity. If those premises in the sparsely settled and, for the most part, unsettled open country are not a proper place for the keeping of swine under § 13, where in the town of Smithfield would the town council allow swine to be so kept? Merely to pose that question is to show the arbitrary and capricious character of its decision.
The town council should have granted petitioner's application subject to compliance with such reasonable restrictions as it deemed proper. Its denial of the application should, therefore, be quashed.