183 Mass. 491 | Mass. | 1903
This is an indictment for violation of a by-law of the town of Arlington, forbidding the keeping by any person of more than five swine, exclusive of offspring less than four months old of said swine, within the limits of the town. The only authority for the adoption of a by-law of this kind is found in the statutes which are now embodied in the R. L, c. 25,
Our conclusion that such prosecutions are to be begun by complaint and not by indictment in the Superior Court, is strengthened by the provisions of R. L. c. 221, § 1, in regard to the disposition of fines paid in the different courts; although, in view of the sections immediately following in the same chapter, we should not deem these provisions decisive if they stood alone.
Another question is whether the by-law is valid. As applied to a case like the present, it purports to relate to the exercise of an employment within the meaning of the R. L. c. 75, § 91. Commonwealth v. Young, 135 Mass. 526. Jurisdiction in such matters is given to the board of health of cities or towns. As to the validity of an order of the board of health forbidding the exercise of an employment on the ground that it is “ a nuisance, or hurtful to the inhabitants, injurious to their estates, dangerous to the public health or is attended by noisome and injurious odors,” the party affected is entitled to a trial by jury in the Superior Court. R. L. c. 75, § 95. Sawyer v. State Board of Health, 125 Mass. 182. It was intimated in Commonwealth v. Patch, 97 Mass. 221, 223, that in a case of this kind, the person exercising an employment could not be cut off from this right to a trial by jury by the adoption of a by-law or an ordinance. At the time when this by-law was adopted, there was in the town of Arlington a board of health which had jurisdiction of such employments. In this respect the case is unlike Commonwealth v. Patch, ubi supra. We are of opinion that the inhabitants of the town were not authorized to adopt a by-law prohibiting the exercise of the defendant’s employment under the circumstances which appear in this case.
Exceptions sustained.