Com. v. Rivkin

Decision Date31 December 1952
Citation109 N.E.2d 838,329 Mass. 586
PartiesCOMMONWEALTH v. RIVKIN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Sanford Keedy, Dist. Atty., Amherst, Oscar Grife, Asst. Dist. Atty., Northampton, for Commonwealth.

Samuel L. Fein, Springfield, Frank H. Freedman, Springfield, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

RONAN, Justice.

The defendant was convicted and fined upon a complaint charging that he 'unlawfully did sell, offer and expose for sale certain ice cream on the streets and sidewalks or public places in said Northampton' in violation of a regulation of the board of health of that city. The judge stayed the execution of the sentence, and at the request of the parties reported the case to this court with the stipulation that if the finding of guilty was warranted by law the defendant should stand convicted, otherwise the conviction is to be set aside and the defendant discharged.

The regulation was adopted by the local board of health on December 7, 1914, in accordance with the provisions of St. 1914, c. 627, which amended St. 1912, c. 448, the original enactment. The pertinent portions of these statutes conferring a regulatory power on local boards of health have remained unchanged through all subsequent amendments, and provide that 'Local boards of health * * * may make and enforce reasonable rules and regulations as to the conditions under which all articles of food may be kept or exposed for sale, in order to prevent contamination thereof and injury to the public health.' G.L. (Ter.Ed.) c. 94, § 146. The regulation reads as follows: 'Section 3. No person shall sell, offer or expose for sale ice cream in any form on any street, sidewalk, or other public place.'

The statement of agreed facts upon which the case was submitted to the trial judge states that 'The defendant made a sale of ice cream on a public way in the city of Northampton on July 17, 1951.' That is all that the defendant did. He was a hawker and peddler and held a State license. There is nothing contained in the report of the judge to show, directly or inferentially, that the defendant did anything with reference to the ice cream prior to its sale. A local regulation in derogation of property rights or impairing a right granted by a statute and penal in nature is not to be extended beyond its plain import and is generally to be strictly construed. Commonwealth v. Hayden, 211 Mass. 296, 297, 97 N.E. 783; Greene v. Mayor of Fitchburg, 219 Mass. 121, 125, 106 N.E. 573. See Commonwealth v. Beck, 187 Mass. 15, 72 N.E. 357; Wyeth v. Cambridge Board of Health, 200 Mass. 474, 86 N.E. 925, 23 L.R.A., N.S., 147. There is not a word in either brief concerning any offer or exposure for sale by the defendant. The case was based upon that part of the regulation which prohibited the sale, leaving open the question whether a regulation going to this extent is valid. We confine our discussion to the question whether the making of the sale alone was sufficient ground for the defendant's conviction for an alleged violation of the regulation.

The regulatory power of the board of health was measured and limited by the enabling statute which delegated the power to make rules relative to the manner in which food should be kept or exposed for sale. The object of such rules was to prevent the contamination of food intended for sale by prescribing the sanitary conditions under which it was to be kept and exposed for sale. Commonwealth v. E. E. Wilson Co., 241 Mass. 406, 135 N.E. 376. The statute said nothing about regulating the sale of food. It concerned itself entirely with a situation existing before sales were consummated. Any doubt that the sales of food did not come within the enabling statute is dispelled when we consider that at the time of its enactment it was a familiar sight to see sidewalk stands outside of stores, exhibiting fruit and berries which were protected from dust and dirt by a covering of mosquito netting and from flies and insects by colored streamers flowing over the stands and kept in motion by a draft generated by an electric fan. It was to this situation that the legislation was directed. Legislation is to be considered in the light of existing conditions. Commonwealth v. Strauss, 191 Mass. 545, 553, 78 N.E. 136, 11 L.R.A.,N.S. 968; Opinion of the Justices, 251 Mass. 569, 600, 147 N.E. 681. That the object of the enabling statute was to prevent the exhibition and exposure of food in such a manner as to result in contamination is further exemplified by the express provision contained in the enabling statute, St. 1914, c. 627, and since continued in it as it appears in its present form, G.L. (Ter.Ed.) c. 94, § 146, to the effect that no regulation adopted under it shall be construed to prevent the exposure of food articles for sale on Saturdays and days preceding holidays in the Boston 'market limits' as defined by the ordinances of Boston except in any area in said limits where on June 6, 1914, it was necessary to secure a permit from the board of health to expose goods for sale. 1

It was said in Leahy v. Inspector of Buildings of City of New Bedford, 308 Mass. 128, 131, 31 N.E.2d 436, 438, 'But the legislature could determine the extent of the power granted to these municipalities and prescribe the terms and conditions under which it could be exercised, and action taken beyond the authority...

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8 cases
  • Purity Supreme, Inc. v. Attorney General
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 3, 1980
    ...could not have promulgated a regulation disallowing a practice expressly permitted by State statute. See Commonwealth v. Rivkin, 329 Mass. 586, 588-589, 109 N.E.2d 838 (1952) (total prohibition of sidewalk sale of ice cream by local health board exceeds statutory power to adopt regulations ......
  • Grocery Mfrs. of America, Inc. v. Department of Public Health
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 28, 1979
    ...(1977) (power to require forms to be signed under oath implied from power to subpoena and to administer oaths). Commonwealth v. Rivkin, 329 Mass. 586, 109 N.E.2d 838 (1952) (power to prohibit sales not granted by authority to regulate conditions under which sales could be made). Commonwealt......
  • Trio Distributor Corp. v. City of Albany
    • United States
    • New York Court of Appeals Court of Appeals
    • May 16, 1957
    ...streets of New York City was held to be unconstitutional. Similar ordinances have met a similar fate in other States (Commonwealth v. Rivkin, 329 Mass. 586, 109 N.E.2d 838; New Jersey Good Humor v. Board of Com'rs of Borough of Bradley Beach, 124 N.J.L. 162, 11 A.2d 113; Frecker v. City of ......
  • New England Tel. & Tel. Co. v. City of Brockton
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 8, 1955
    ...Kilgour v. Gratto, 224 Mass. 78, 112 N.E. 489; Borggaard v. Department of Public Works, 298 Mass. 417, 10 N.E.2d 724; Commonwealth v. Rivkin, 329 Mass. 586, 109 N.E.2d 838. The statute, St.1880, c. 83, is unlike Pub.Sts. c. 113, codifying the previous statutes, to wit, St.1871, c. 381, and ......
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