Com. v. Henry's Drywall Co., Inc.

• Decision Date: 24 December 1974
• Citation: 366 Mass. 539,320 N.E.2d 911
• Parties: COMMONWEALTH v. HENRY'S DRYWALL CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 911

320 N.E.2d 911

366 Mass. 539

COMMONWEALTH v. HENRY'S DRYWALL CO., INC.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 7, 1974.

Decided Dec. 24, 1974.

Robert M. Mardirosian, Watertown, for defendant.

Terence M. Troyer, Asst. Dist. Atty. (Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C. J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

On February 6, 1968, the defendant corporation was found guilty in a District Court on a complaint charging violation of G.L. c. 149, § 129B (inserted by St.1964, c. 233, and as appearing in St.1967, c. 261), in that it 'being a corporation engaged in construction work, did require or knowingly permit . . . a person employed by it in such work to use certain devices commonly called stilts, designed to be attached to the feet or legs of such employee for the purpose of elevating him to high placed or positioned work.'

Pursuant to G.L. c. 278, § 18, the defendant appealed to the Superior Court and on September 13, 1968, the case was transferred to the Third District Court of Eastern Middlesex for trial de novo. The case was continued on ten separate dates until December 10, 1971. At that time, the case was reported to this court under the interlocutory provisions of G.L. c. 278, § 30A, the defendant requesting that we review his motion to dismiss. ¹

We concluded on the basis of the record before us, including the series of unexplained continuances avoiding what in all probability would have been a very short trial, that the case was not an appropriate one for interlocutory review by this court in that it did not appear likely that the report presented serious questions, the resolution of which would substantially facilitate proceedings in the trial court. ² Commonwealth v. HENRY'S DRYWALL CO. INC., --- MASS. ---, 289 N.E.2D 852 (1972)^A. Accordingly we set aside the stipulation that the parties had entered into, ³ discharged the report, and remanded the case for further proceedings. Id. at ---, ^b 289 N.E.2d 852.

On April 25, 1973, after a hearing in the Third District Court of Eastern Middlesex, the defendant's motion to dismiss was denied. In a jury waived trial de novo on appeal, the defendant was found guilty and fined $100.

The defendant by a bill of exceptions appeals from this conviction arguing that G.L. c. 149, § 129B, violates the guaranties of our Federal and State Constitutions in that it denies the defendant equal protection of the laws and further deprives him of liberty and property without due process of law. ⁴

We note at the outset that when a challenge is made to the constitutionality of a legislative enactment, the person making the challenge has an onerous burden of proof in establishing the invalidity of the statute. Commonwealth v. Chamberlain, 343 Mass. 49, 51, 175 N.E.2d 486 (1961); Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 701, 184 N.E.2d 344 (1962); Pinnick v. Cleary, 360 Mass. 1, 14, 271 N.E.2d 592 (1971); Jewel Cos. Inc. v. Burlington, --- Mass. ---, ---, ^c 311 N.E.2d 539 (1974). The court, in defining that burden of proof, has stated that it will afford a presumption of constitutionality to the legislative enactment which means that all rational inferences are made in favor of the legislation. Howes Bros. Co. v. Unemployment Compensation Commn., 296 Mass. 275, 284, 5 N.E.2d 720 (1936), cert. den. 300 U.S. 657, 57 S.Ct. 434, 81 L.Ed. 867 (1936); Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 306, 65 N.E.2d 529 (1946); Pinnick v. Cleary, supra. Furthermore, it has been our frequently stated rule that a statutory classification will not be set aside as a denial of equal protection or due process if any state of facts reasonably may be conceived to justify it. McQuade v. New York Cent. R. R., 320 Mass. 35, 68 N.E.2d 185 (1946); COLELLA V. STATE RACING COMMN., --- MASS. --- , 274 N.E.2D 311 (1971)^D.

The defendant argues that the standard of review articulated above is inappropriate to the facts of this case in that G.L. c. 149, § 129B, infringes on its right to pursue its lawful business, a right which it deems fundamental. Having postulated the right to work as fundamental, the defendant asserts that the State must demonstrate that § 129B serves a compelling State interest.

The scrutiny with which this court will review a statute infringing on fundamental rights is, of course, much stricter than the judicial review which requires only that a statute not be arbitrary or capricious. Where a fundamental right is at issue, the State must show that the statute is necessary to promote a compelling governmental interest. Sherbert v. Verner, 374 U.S. 398, 402-409, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). And in certain circumstances, arguably involving constitutionally protected liberties, we have required that the asserted governmental interests be sufficient to outweigh exercise of the individual right. Selectmen of Framingham v. Civil Serv. Commn., --- Mass. ---, --- N.E.2d --- (1974). However, neither the United States Supreme Court nor this court has ever held that the right to work or to pursue one's business is a fundamental right infringement of which deserves strict judicial scrutiny. Accordingly our standard of review in considering the validity of restrictions on the manner of pursuing one's business is whether the statute has a rational tendency to promote the safety, health, morals or general welfare of the public. McMurdo v. Getter, 298 Mass. 363, 366, 10 N.E.2d 139 (1937); Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 190, 23 N.E.2d 133 (1939); Commonwealth v. Finnigan, 326 Mass. 378, 379, 96 N.E.2d 715 (1950); Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 497, 204 N.E.2d 504 (1965); Mobil Oil Corp. v. Attorney Gen., --- Mass. ---, --- ^e, 280 N.E.2d 406 (1972); Jewel Cos. Inc. v. Burlington, --- Mass. ---, ---, ^f, 311 N.E.2d 539 (1974).

Applying these standards, we conclude that § 129B is a valid exercise of the legislative authority and is constitutional in that it satisfies both the equal protection and due process clauses of our Federal Constitution as well as the parallel requirements of our State Constitution.

With respect to the due process challenge, the defendant argues that the statute is not related to the public health, safety, morals or general welfare. Further, the defendant contends that § 129B arbitrarily interferes with its right to conduct its business and carry on a lawful trade, and is therefore violative of due process. The claim is that stilts are less dangerous than other methods of elevation which are permitted ⁵ and therefore, the defendant asserts, it is irrational to ban their use.

Our consideration of the substantive merits of a legislative enactment is guided by the well settled principle that a law in order to meet the guaranties of due process must not be unreasonable or arbitrary and the means selected must have a real and substantial relation to the object sought to be attained. Howes Bros. Co. v. Unemployment Compensation Commn., 296 Mass. 275, 287 (1936), cert. den., 300 U.S. 657, 57 S.Ct. 434, 81 L.Ed. 867 (1936); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920); Pinnick v. Cleary, 360 Mass. 1, 13-16, ^g 271 N.E.2d 592 (1971). As was early recognized, 'neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.' Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 510, 78 L.Ed. 940 (1934). The Fourteenth Amendment in the context of economic legislation proscribes the exercise of this governmental power to regulate for the public welfare only to the extent that an enactment is in manifest excess of legislative power. Commonwealth v. Finnigan, 326 Mass. 378, 379, 96 N.E.2d 715 (1950). We recognize, of course, the importance of the right to pursue one's trade or business. That right, however, is not unqualified and, in certain circumstances, must yield to regulations designed to promote the public safety, health, morals and general welfare. McMurdo v. Getter, 298 Mass. 363, 366, 10 N.E.2d 139 (1937); Commonwealth v. Finnigan, supra. Our function is to ensure that no regulation unreasonably interferes with the pursuit of a trade or business. Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 65 N.E.2d 529 (1946). JEWEL COS. INC. V. BURLINGTON, --- MASS. ---, 311 N.E.2D 539 (1974)^H. It is not our function to consider the expediency of an enactment or the wisdom of its provisions. Howes Bros. Co. v. Unemployment Compensation Commn., 296 Mass. 275 (1936); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422-423, 204 N.E.2d 281 (1965), and cases cited therein. Mobil Oil Corp. v. Attorney Gen., --- Mass. ---, ---, ⁱ 280 N.E.2d 406 (1972).

We cannot on the basis of this record say that this regulation constitutes such an unreasonable interference. The Legislature may have concluded with substantial cause that the use of stilts in construction work endangered workers. Moreover, it is not irrational to conclude that the use of stilts may adversely affect the quality of the end product. These conceivable bases for the enactment of § 129B are not groundless.

The defendant assails G.L. c. 149, § 129B, on equal protection grounds from two fronts. First, the defendant argues that § 129B is unconstitutional in that it prohibits the use of stilts by employees engaged in construction work while permitting the use of stilts in other nonconstruction trades and occupations. Second, he argues that the statute is...