The Volokh Conspiracy

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Urine Isn't a "Noxious or Filthy Substance for Purposes of 1851 Massachusetts Vandalism Law"


In Commonwealth v. Narvaez, decided Tuesday by the Massachusetts high court, the defendant had allegedly deliberately "urinated on the floor both inside and outside of [his jail] cell":

Based on the location of the toilet in the cell, the officer stated that "it [was] apparent that [the defendant] purposely urinated through the cell bars on to the floor outside the cell." The urine had "seeped into the cracks between the floor tiles, potentially causing permanent damage to the sub floor beneath." Because urine, like other bodily fluids, can carry potentially dangerous bacteria and viruses, police hired a cleanup company specializing in cleaning hazardous fluids and spills to clean the defendant's cell.

He was prosecuted for vandalizing a building with a "noxious or filthy substance," which provides,

Whoever wilfully, intentionally and without right throws into, against or upon a … building … or puts or places therein or thereon oil of vitriol, coal tar or other noxious or filthy substance, with intent unlawfully to injure, deface or defile such … building … shall be punished by imprisonment in the [S]tate prison for not more than five years or in jail for not more than two and one half years or by a fine of not more than [$300].

But the court concluded urine didn't qualify:

The term "other noxious or filthy substance" is not defined in the statute. Therefore, we first consider the plain and ordinary meaning of the phrase. "Noxious" is defined as "[h]armful to [one's] health," or "injurious." The term "filthy" is defined as "[c]overed or smeared with filth" and "disgustingly dirty." The Commonwealth contends that where urine so obviously is "disgustingly dirty," our inquiry into the meaning of the term "other noxious or filthy substance" ought to end there. We disagree.

Ordinarily, we do not turn to extrinsic sources of legislative intent where a statute seemingly is clear and unambiguous on its face…. [But w]hat is "noxious," "filthy," "harmful to one's health," or "disgustingly dirty" is equivocal and extremely fact dependent, having no "fixed and rigid signification." It is a term that may have "different meanings dependent upon contemporary conditions, the connection in which it is used, and the result intended to be accomplished." Therefore, the term "other noxious or filthy substance" lends itself to ambiguity, an ambiguity that only is furthered by the oddity of the specific substances that precede the statutory term, oil of vitriol and coal tar.

Section 103 was enacted in 1851.. During this time, the temperance movement was sweeping the country in the decades preceding the Civil War. "The Temperance Movement in the United States was born out of growing public dismay over what was perceived to be alcohol's corrosive effect on societal morality." This moral movement "sought and eventually obtained a prohibition on the sale of alcohol." … This movement … was met with great resistance across the country. The resistance came in the form of riots and outrage. The antitemperance movement was comprised of agitators of violence, threatening to seek revenge on any who supported abstinence from the consumption of alcohol.

Massachusetts too fell victim to this violence, as those opposed to the temperance movement made their opposition well known, often in a "loud and boisterous" manner. In June 1847, four years before § 103 was enacted, four bottles of coal tar were thrown through the windows of two "prominent temperance men." The next night more coal tar was thrown through the windows of a local deacon, doing "great injury to the furniture … [and] paintings" located within the building. "The weapon of choice" so to speak, in carrying out these acts of violence and vandalism, often was coal tar or oil of vitriol. Both substances seemingly were popular not simply for the destruction that they caused in the building into which they were thrown, but also for their potential to injure those inside.

In light of this historical context, the Legislature was forced to take a significant measure to combat the antitemperance violence that began to grow in the decades preceding the Civil War, by enacting § 103 in 1851. To read this statute without such cause in mind would disregard "the mischief or imperfection to be remedied and the main object to be accomplished" by the statute, and would run afoul of the Legislature's intent.

But the historical analysis still does not, by itself, as the plain language of the statute does not, define what the Legislature intended the term "other noxious or filthy substance" to encompass. We must turn to our canons of statutory interpretation to determine the full meaning behind "other noxious or filthy substance," as intended by the Legislature.

One such canon, ejusdem generis, is Latin for "of the same kind or class." Under this doctrine, "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." The doctrine is most appropriate where "a series of several terms is listed that concludes with the disputed language." Here, the statute lists two specific terms, oil of vitriol and coal tar, followed by more general language, "or other noxious or filthy substance," i.e., the disputed language. Thus, ejusdem generis applies.

In Commonwealth v. Escobar (Mass. 2018), this court used the doctrine of ejusdem generis to discern the Legislature's intent behind the term "anything of value" to determine whether a defendant committed identity fraud within the context of G. L. c. 266, § 37E (b) (§ 37E [b]). The defendant argued that evasion from criminal prosecution was not "anything of value" within the meaning of § 37E (b) and that, thus, the Commonwealth failed to establish an essential element of the charged offense. This court agreed because where the general term "anything of value" was preceded by the specific terms "money, credit, goods, [or] services," the term "anything of value" in § 37E (b) necessarily must have been intended to be limited only to "that which can be exchanged for a financial payment." The phrase "anything of value" necessarily was added "to encompass any other items that do not appear but are similar to those items that do appear."

Here, coal tar is "tar obtained by distillation of bituminous coal and [is] used [especially] as an industrial fuel, in making dyes, and in the topical treatment of skin disorders." Oil of vitriol is concentrated sulfuric acid. Both are listed on the Massachusetts Oil and Hazardous Material List. Urine is neither listed on the Massachusetts Oil and Hazardous Material List nor similar substantially in form to either of these two substances….

Applying the doctrine of ejusdem generis to § 103, the general term "should itself be controlled and defined by reference to the enumerated categories of [substances] which are recited just before it." Thus, we must construe the term "other noxious or filthy substance" to encompass only those substances substantially similar to the specifically listed items, coal tar and oil of vitriol, both of which were used as items to throw at buildings as part of the antitemperance violence in the decades leading up to the Civil War. {In coming to this conclusion, we note the particularly harsh penalty that accompanies a violation of § 103. The statute permits imprisonment for up to five years in State prison, making the crime a felony. Where violation of the statute constitutes a felony with a substantial potential prison sentence, we believe that our holding more closely effectuates the Legislature's intent behind the statute's enactment.}

Any other view "would … strip the more specific terms of any meaning whatsoever," and would rid them of their limiting effect. Construing the term "other noxious or filthy substance" to include urine "fails to give independent effect to the statute's enumeration of the specific categories of [substances] which precedes it." Put differently, there would have been no need for the Legislature to have used the terms oil of vitriol or coal tar if those terms simply were going to be "subsumed within the meaning" of the more general term "other noxious or filthy substance." …

Congratulations to Rachel T. Rose, who represented defendant. Thanks to Ed Cutting for the pointer.