City of Revere v. Riceman

• Decision Date: 30 June 1932
• Citation: 280 Mass. 76
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY OF REVERE v. MAX RICEMAN & another.

280 Mass. 76

CITY OF REVERE v. MAX RICEMAN & another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1932

May 10, 1932.

Present: RUGG, C.

J., PIERCE, WAIT FIELD, & DONAHUE, JJ.

Board of Health. License. Municipal Corporations, Officers and agents.

The board of health of a city, after voting to revoke a "license" previously given to keep, slaughter and sell fowl on certain premises in the city, approved plans and specifications for a new building proposed to be erected on those premises for a slaughter house, reconsidered its previous vote and voted to allow the proprietor of the slaughtering business to continue it on those premises. A month later, after the construction work on the premises had been begun, but before it had been completed, the board of health, under G.L.c. 111, Section 143, voted to prohibit the slaughtering business on the premises. The proprietor of the business and the owner of the building filed an appeal under G.L.c. 111,

Section 147, which subsequently was dismissed "without prejudice." The proprietor continued to do a slaughtering business on the premises. In a suit in equity thereafter commenced by the city against the proprietor and the owner, it did not appear by what officials or under what authority the original "license" had been granted. The trial judge stated that he inferred that such original "license" was an assignment made under said Section 143; and found that a noisome business was being carried on in the new building by the proprietor with the permission of the owner, without the sanction of any municipal authority and contrary to the order of prohibition; and a decree was entered enjoining the proprietor from using, and the owner from permitting the use of, the premises for slaughtering fowl. Held, that

(1) The trial judge properly inferred that the original "license" was an assignment under G.L.c. 111, Section 143;

(2) The vote of the board of health to reconsider and to permit the defendant proprietor to continue his business on the premises in question was in effect a new assignment under said Section 143;

(3) It was proper to rule that the board of health could not bind itself irrevocably by a promise that the new building on completion would be assigned under said Section 143 as a place for the exercise of the business;

(4) The board of health had the power under said Section 143 to prohibit the exercise of the business as a noisome trade;

(5) The order of prohibition violated no constitutional right of the defendant proprietor;

(6) The decree was proper.

BILL IN EQUITY filed in the Superior Court on September 1, 1931, and afterwards amended, described in the opinion.

The suit was heard by Fosdick, J., upon an agreed statement of facts. Material facts, rulings by the judge and a final decree entered by his order are described in the opinion. The judge in his "decision" stated the following, in part: "The agreed facts do not state what body originally issued in 1910 the writing variously referred to in the agreed facts as a `license' and `permit,' and it is probably immaterial because the order of prohibition of August 6, 1931, was obviously made under G.L.c. 111, Section 143. Such an order would operate notwithstanding the existence of a license, by whatever authority given . . . I infer that the 1910 `license' or `permit' was an assignment originally made and revocable under Section 143 and its predecessors."

The defendants appealed. G.L.c. 111, Section 143, reads as follows:

"Boards of health may from time to time assign certain places for the exercise of any trade or employment which 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, and may prohibit the exercise thereof within the limits of the town or in places not so assigned. Such assignments shall be entered in the records of the town, and may be revoked when the board shall think proper."

G.L.c. 111, Section 151, reads as follows: "No person shall occupy or use a building for carrying on the business of slaughtering cattle, sheep or other animals, or for a melting or rendering establishment, or for other noxious or offensive trade and occupation, or permit or allow said trade or occupation to be carried on upon premises owned or occupied by him, without first obtaining the written consent and permission of the mayor and city council, or of the selectmen, or, in any town having a population of more than five thousand, of the board of health, if any, of the town where the building or premises are situated. This section shall not apply to any building or premises occupied or used for said trade or occupation on May eighth, eighteen hundred and seventy-one; but no person who used or occupied any building or premises on said date for said trades or occupations shall enlarge or extend the same without first obtaining the written consent and permission of the mayor and city council or the selectmen, or, in any town having a population of more than five thousand, of the board of health, if any."

The case was submitted on briefs. H.C. Mamber, for the defendants.

W.P. Murray, for the plaintiff.

PIERCE, J. This is a bill in equity wherein the plaintiff seeks to enjoin the defendants from maintaining a slaughter house at 295 Revere Street, Revere, or from carrying on the trade or business of keeping, slaughtering and selling of fowl until the further order of the court.

At the trial in the Superior Court the parties submitted the case on a "Statement of Agreed Facts." These facts summarized in substance are as follows: On August 6, 1931, the defendant Max Riceman had a license to conduct a slaughter house at 295 Revere Street, Revere. This license was originally granted and became operative in 1910 and continued to be exercised thereafter for more than twenty years. By the terms of the license Riceman was allowed to keep, slaughter and sell fowl at 295 Revere Street, Revere. On March 16, 1931, the owner of the premises, the defendant Safferson, received notice from the building inspector of the city of Revere to the effect that the building at 295 Revere Street being used for a slaughter house "is in an unsanitary and deplorable condition and is also condemned." On May 29, 1931, the board of health of the city of Revere revoked "the license granted to Mr. Max Riseman [sic] . . . for the carrying on of an offensive trade." A few days thereafter plans and specifications for a new building were submitted to the board of health by the owner which indicated that in place of the old building a new brick and tile building was to be erected at said 295 Revere Street, Revere, for the purpose of carrying on the business of keeping, slaughtering and selling fowl. On July 2, 1931, the board of health held a meeting and voted to "re-consider previous motion of May 29, 1931, and allow Max Riseman [sic] . . . to continue in his present business the keeping, killing and selling of fowl at No. 295 Revere Street, Revere." On July 2, 1931, on a motion made and seconded the board of health voted "that plans and specifications of Mr. Max Riseman, [sic] of No. 295 Revere Street, Revere, for a slaughter house be submitted to the Board of Health Office within one week from date of receiving notice and that he proceed to build within two weeks from said date." On July 6, 1931, the board of health approved the plans and specifications and on the same day the construction of the building was begun. On August 6, 1931, the board of health passed the vote which follows: "VOTED: To prohibit the exercise of the trade or employment, to wit: Of the business of keeping and maintaining a place for the keeping and slaughtering of fowl on the premises numbered 295 on Revere Street in said Revere, which is a nuisance and hurtful to the inhabitants, injurious to their estates, dangerous to the public health, and is attended by noisome and injurious odors, and the exercise of said trade is hereby prohibited at said place, and that one Max Riseman, [sic] the proprietor of said business, and one Celia Safferson, the owner of said premises, shall be notified forthwith of the making of this order." On August 10, 1931, the defendants filed an appeal under G.L.c. 111, Section 147. On September 1, 1931, the building was completed and in place of the old building there was erected a new, modern...