In this bill in equity the plaintiffs allege that they are owners and operators of manufacturing
The regulation, effective January 1, 1948, and set forth in the bill and admitted in the answer, is as follows: “All breads, rolls, biscuits, muffins and any other bakery products, which, in the opinion of the board of health, require such protection, intended for sale or distribution within the limits of the city of Haverhill, before removal from the establishment wherein they are produced, shall be packed in suitable retail units by wrapping in cellophane, waxed paper or other approved material, sealed or fastened in such a way as to prevent contamination by dust, dirt, insects or careless handling. Said wrappings must be intact when the goods are delivered and no packages shall be opened prior to the final sale to individuals or consumers, except that restaurants, lunch rooms and the like shall be classed as consumers and entitled thereby to open said packages in order to serve smaller portions to their patrons. Bakery products of all kinds intended to be sold to consumers from within the bakery or building in which they are produced, without prior removal therefrom, may be displayed unwrapped in clean glass show cases or show windows so constructed as to afford satisfactory protection from contamination pending sale, but said products shall not be delivered to purchasers without being suitably wrapped or enclosed.”
The evidence is not reported, and there was no request for a report of the material facts found by the judge under G. L. (Ter. Ed.) c. 214, § 23, as appearing in St. 1947, c. 365, § 2. The judge, however, filed a document entitled “Findings of material facts, rulings, and order for decree” which we quote in its entirety: “I find that the rights which the plaintiffs seek to protect are personal rights; that the enforcement of the regulation will cause the plaintiffs irreparable loss. I find and rule that the regulation is
The regulation of bakeries and bakery products has long been the subject of legislative enactment. G. L. (Ter. Ed.) c. 94, §§ 2-10; see also §§ 1 OH-1 OK, inclusive, added to said c. 94 by St. 1948, c. 444, § 2. With an exception, here immaterial, relating to rules and regulations of the State department of health, local “boards of health may make such further regulations as the public health may require.” G. L. (Ter. Ed.) c. 94, §§ 9D, 9F, as inserted by St. 1937, c. 362, § 3. Criminal penalties are provided for violations of such regulations. G. L. (Ter. Ed.) c. 94, § 9E, as inserted by St. 1937, c. 362, § 3. The regulation in question was apparently adopted under the statute just cited. As the board had this specific authority, we merely refer to the general authorization to local boards of health to “make reasonable health regulations” under G. L. (Ter. Ed.) c. Ill, § 31, as amended by St. 1937, c. 285.
1. We first must decide whether the modifying clause in the first sentence of the regulation, “which, in the opinion of the board of health, require such protection,” refers only to its immediate antecedent, “any other bakery products,” or whether it equally refers to “all breads, rolls, biscuits, muffins.” “It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.” Hopkins v. Hopkins,
2. We next consider to what extent the regulation may
3. The plaintiffs contend that the entire regulation is invalid as matter of law. One ground of this objection is that in the statute regulating bakeries and bakery products there are references in two sections to “unwrapped bread,” from which it is argued that “the Legislature had no intention of requiring bread to be wrapped.” It may be noted that this is not the same as an affirmative intention that no local board could in its discretion by a proper regulation require bread to be wrapped. The first of these sections is G. L. (Ter. Ed.) c. 9Í, § 4, which prohibits the use in bakery products of any ingredient which is “spoiled or contaminated or which may render the product unwholesome, unfit for food or injurious to health” (see Johnson v. Stoddard, 310
4. The plaintiffs also contend that the entire regulation is repugnant to G. L. (Ter. Ed.) c. 94, §§ 2, 3.
5. The remaining question is whether the judge’s findings expressly made or implied from the decree are decisive. The judge’s express findings are not the equivalent of a report of material facts under the statute. Accordingly, as the plaintiffs contend, the entry of the decree imported a finding of every fact essential to sustain it and within the scope of the pleadings. Birnbaum v. Pamoukis,
We have considered above the question of indefiniteness. The bill does not allege that the regulation is arbitrary. To this extent the decree is beyond the scope of the bill. There are, to be sure, prayers that the “regulation be declared null and void,” for an injunction against its enforcement, and for general relief. The scope of the bill is determined by its allegations and cannot be enlarged by the prayers, specific or general. Bushnell v. Avery,
' In State v. Normand, 76 N. H. 541, a regulation of the State board of health requiring the wrapping of bread was held not to be unreasonable. In Re Shelly, [1913] 10 D. L. R. 666, a similar city by-law was held not to be unreasonable because of the expense entailed.
The only ground of unreasonableness stated in the bill is' that the regulation is “in fact injurious to hard crusted bread, rolls and other bakery products when placed in wrappings, by interfering with the natural circulation of moisture and air, which is necessary to maintain these products in fresh and proper condition.” A finding of unreasonableness on any other ground would be beyond the scope of the bill.
The question then is whether it could properly be found or decreed that the regulation in requiring the wrapping of hard crusted bread or rolls is void for unreasonableness in the respect alleged. The regulation stands on the same footing as would a statute, ordinance, or by-law. Pacific States Box & Basket Co. v. White,
The requirement of the wrapping of hard crusted bread and rolls, whether for transportation from the establishment where produced and for sanitary keeping until sold to a consumer, or when sold in the building or bakery where produced, is an appropriate exercise of the power of a 'local board of health to make such further regulations affecting bakeries and bakery products “as the public health may require.” G. L. (Ter. Ed.) c. 94, § 9D, as inserted by St. 1937, c. 362, § 3. The defendant board has determined wrapping to be a reasonable precaution to impose for protection against flies and other insects, for keeping out dust and dirt, for guarding against careless handling, and for prevention of exposure to germs and of transmission of disease. It cannot be said that this was not a rational means of achieving these objectives. We are satisfied that no evidence which could have been presented to the judge would have been sufficient to support a finding overthrowing the regulation on the ground of unreasonableness alleged in the bill.
The plaintiffs cannot complain that their business has been injured by the exercise of the police power for the benefit of the public health. Commonwealth v. S. S. Kresge Co.
6. The final decree is reversed. A new final decree is to be entered declaring that that portion of the first sentence of the regulation reading “and any other bakery products, which, in the opinion of the board of health, require such protection” is void for indefiniteness, and that the remainder of the regulation is valid.
So ordered.
Notes
“Section 2. The floors, walls and ceilings of each bakery, the equipment used in the handling or preparation of bakery products or the ingredients thereof, and the wagons, boxes, baskets and other receptacles in which such products are transported, shall at all times be kept by the owner or operator of the bakery or by the distributor of such products in a clean and sanitary