318 Mass. 276 | Mass. | 1945
This is an appeal from a final decree enjoining the defendant from collecting, removing or transporting garbage through the streets of Malden.
The board of health of Malden on February 8, 1944, adopted a regulation which, after reciting that kitchen swill and garbage are a source of filth and are capable of containing and of conveying contagion and of creating sickness, thereby endangering the public health, and that swill and garbage should be collected and removed by the city, ordered that no person, other than the city and its contractors, should transport swill or garbage through the
The city, in whose name the bill was properly brought, Lincoln v. Murphy, 314 Mass. 16; Revere v. Blaustein, 315 Mass. 93, points to the fact that a regulation of the board of health of Boston, almost identical with the one in question, was held valid in Wheeler v. Boston, 233 Mass. 275, where petitions for mandamus by two farmers to require the board of health to grant permits to enable them to collect and remove garbage from various places in Boston to. their farms in adjoining towns were dismissed. The regulation in that case was adopted under R. L. c. 75, § 65 (now G. L. [Ter. Ed.] c. 111, § 122), which authorized a board of health to examine into all nuisances, sources of filth and causes of sickness, to destroy, remove or prevent the same, and to make regulations for the public health and safety relative thereto and to articles capable of containing or conveying infection or contagion. The decision in the Wheeler case was apparently thought by the Legislature to work a hardship upon those who were engaged in keeping swine in rural districts, who were able to obtain a supply of garbage from hotels and restaurants in the large cities and who were willing and able to transport it in a sanitary manner, for within two years of that' decision the Legislature enacted St. 1921, e. 358, which became G. L. (Ter. Ed.) e. 111, § 31 A, and which provided that any person might remove and transport garbage through the streets if he first registered his name with the local board of health and removed and transported such material “in accordance with such reasonable rules and regulations as may be established by the said board.” This section was repealed and a new § 31A was inserted in c. 111 by St. 1937, c. 282. This new section provided that no person should remove or transport garbage through the streets of any city or town without first obtaining a permit from the board of health of such city or town. Permits were to expire at the end of the calendar year in which they were granted and
The authority of boards of health to prohibit absolutely and in all instances by a general regulation the transportation of garbage, except by the city or its contractors, which they formerly possessed by virtue of what is now G. L. (Ter. Ed.) c. Ill, § 122, no longer exists, and the statutory basis upon which Wheeler v. Boston, 233 Mass. 275, was decided no longer prevails. It does not follow, however, that a board is required to grant all or any applications for a permit. The duty of the board is to exercise the power conferred upon it and, when an application is presented, to determine whether its granting or refusal would be beneficial or detrimental to the public health. The instant regulation is not authorized by said § 122 as the city contends and, if not justified by some other statutory provision, is void. Commonwealth v. Hayden, 211 Mass. 296. Kilgour v. Gratto, 224 Mass. 78. Borggaard v. Department of Public Works, 298 Mass. 417. Tranfaglia v. Building Commissioner of Winchester, 306 Mass. 495. Leahy v. Inspector of Buildings of New Bedford, 308 Mass. 128.
The plain implication of § 31 A, forbidding the transportation without a permit from the board of health, is that the power to issue a permit is conferred upon the board of the community where the removal or transportation of garbage is to take place. The granting of a permit is merely the instrumentality by which the removal or transportation is to be controlled by the board of health. Commonwealth v. McGann, 213 Mass. 213. Saxe v. Street Commissioners of Boston, 307 Mass. 495.
The power to regulate has sometimes been held to include the power to prohibit absolutely, Vandine, petitioner, 6 Pick. 187; Attorney General v. Boston, 142 Mass. 200; Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95; Ahmedjian v. Erickson, 281 Mass. 6, but it has also been held to go no farther than to control, restrict or limit.
The invalidity of the rule of the board'of health, however, gives the defendant no right to transport garbage through the streets of Malden without a permit in violation of § 31 A. Commonwealth v. Blackington, 24 Pick. 352.
As the bill cannot be maintained to enforce the regulation of the board, the question remains whether it can be maintained for the purpose of enjoining the defendant from transporting garbage without a permit. Such transportation is in violation of § 31A and constitutes a criminal offence for which a penalty is provided by § 31B. At the trial in the Superior Court, the defendant admitted that he had no permit. There was no evidence that he was committing any nuisance or that his conduct even tended to harm the public health. The city rested its case upon the validity of the regulation and upon nothing else. The
It follows that the final decree must be reversed and a decree is to be entered dismissing the bill.
So ordered.