Commonwealth v. Young

135 Mass. 526 | Mass. | 1883

Colburn, J.

We are of opinion that the keeping by the defendant of one hundred and fifty swine in Revere, and feeding them upon offal brought from Boston, was an “employment” within the meaning of the Gen. Sts. c. 26, § 52.^* The board of health had authority under that section of the statute, if it deemed such employment a nuisance, to prohibit its exercise within the limits of the town, and it had no such authority under any other statute.

Whether the board of health was authorized, in a single order, to forbid the keeping of a single swine, and also the employment of keeping swine, we do not find it necessary to determine in this case; for, if not so authorized, the order was invalid, and, if authorized, the defendant, who was exercising an employment in which he had been engaged for years was entitled, before prosecution, to have the order of prohibition served upon him, as provided in § 55, and an opportunity to appeal to a jury, as provided in § 56; and, no such service having been made, his prosecution was unauthorized. The corresponding provisions of the Pub. Sts. are c. 80, §§ 84, 87, 88. Belcher v. Farrar, 8 Allen, 325. Taunton v. Taylor, 116 Mass. 254. Sawyer v. State Board of Health, 125 Mass. 182.

A majority of the court are of opinion that the

Exceptions must be sustained.

* This section provides that “ the board shall from time to time assign certain places for the exercising of any trade or employment which is a nuisance or hurtful to the inhabitants, or dangerous to the public health, or the exercise of which is attended by noisome and injurious odors, or is otherwise injurious to their estates, and may prohibit the exercise of the same in places not so assigned; the board may also forbid the exercise of such trade or employment within the limits of the town or in any particular locality thereof.”