208 Mass. 493 | Mass. | 1911
This is a complaint against the defendant for the violation of a regulation of the board of health of the city of Boston, relative to the sale of milk. The material part of the regulation is as follows: “ No person or corporation shall sell or offer, expose or keep for sale in any shop, store or other place where goods and merchandise are sold, milk or cream, unless the same is sold or offered, exposed or kept for sale in tightly closed or capped bottles or receptacles, which have been approved by the board of health.” It was agreed that milk was kept for sale by the defendant in a vessel contained in a covered cooler, in his store; that it was always kept at a temperature less than fifty degrees Fahrenheit, and that none of it was allowed to stand outside of the cooler except while a sale of milk was being made; that the cooler was always kept properly drained and cared for and
We do not consider the question whether this regulation is beyond the constitutional power of the Legislature to enact as a statute, or to authorize the board of health to establish locally. For we are of opinion that the statute under which the board assumed to act, (R. L. c. 75, § 65,) is not broad enough to give them this authority. It is as follows: “The board of health shall examine into all nuisances, sources of filth and causes of sickness within its town, or on board of vessels within the harbor of such town, which may in its opinion be injurious to the public health, shall destroy, remove or prevent the same as the case may require and shall make regulations for the public health and safety relative thereto and relative to articles which are capable of containing or conveying infection or contagion or of creating sickness which are brought into or conveyed from its town, or into or from any vessel.” By § 140 of this chapter the section is made applicable to cities.
This statute does not give the board power to make regulations as to all matters affecting the public health. If the board should be certain that the smoking of cigarettes by boys affects their health injuriously, it would have no power to make a regulation forbidding the smoking of them by boys under a certain age, or the sale of them to such boys. It has no power to make gen
The latter portion of this section gives the board jurisdiction to make regulations “ relative to articles which are capable of containing or conveying infection or contagion or of creating sickness which are brought into or conveyed from its town, or into or from any vessel.” This has reference to the bringing into the town or conveying away of articles capable of containing or conveying infection, in such a way as to affect injuriously the public health or safety. The legislation is found in the Eev. Sts. c. 21, § 6, in which the language is, “ when such articles shall be brought into or conveyed from their town, or into or from any vessel.” In the Gen. Sts. c. 26, § 5, the words, “ when such articles shall be ” are omitted, and the section reads in this part, ■“ brought into or conveyed from its town, or into or from any vessel.” In Pub. Sts. c. 80, § 18, the language is the same. We •are of opinion that this part of the section relates to articles of such a kind as to be dangerous in reference to their capability of
The regulation in the present case has no reference to property in connection with its removal from one city or town to another, nor is pure milk such an article as is referred to in the statute. We are of opinion that this part of the section does not authorize a regulation as to the sale of milk kept and sold in the manner that is disclosed in this case.
We have no occasion to consider the objection to the regulation in that part which subjects the business to an absolute determination of the board as to whether they will approve of the bottles or receptacles used in making sales. See Commonwealth v. Maletsky, 203 Mass. 241.
Verdict set aside.