Commonwealth v. E.E. Wilson Co.

• Decision Date: 19 May 1922
• Citation: 135 N.E. 376,241 Mass. 406
• Parties: COMMONWEALTH v. E. E. WILSON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 406

135 N.E. 376

COMMONWEALTH

v.E. E. WILSON CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1922.

Report from Superior Criminal Court, Suffolk County; George A. Sanderson, Judge.

Proceeding by the Commonwealth against the E. E. Wilson Company for violation of an order or regulation of the health commissioner of the city of Boston. Reported from the superior criminal court, after a verdict against defendant. Verdict sustained.

Daniel M. Lyons, Asst. Dist. Atty., of Boston, for the commonwealth.

John F. Cusick, of Boston, for defendant.

BRALEY, J.

The order or regulation of the health commissioner of the city of Boston, ‘that in all establishments where eggs are handled for food or mechanical purposes all ‘rot’ and ‘spot’ eggs shall be immediately placed in a water-tight metal container, provided with cover containing a solution of carbolic acid of a strength of at least 5 per cent, or a denaturant of an equivalent strength therein denatured by mixing them thoroughly,' having been promulgated, the questions are, whether it is lawful, and if so whether there was any evidence for the jury of its violation by the defendant. It is settled by the recent case of Wheeler v. Boston, 233 Mass. 275, 123 N. E. 684, 15 A. L. R. 275, that R. L. c. 75, § 65, now G. L. c. 111, § 122, conferred authority upon the board of health to pass such an order for the preservation of the public health. But by force of the revised ordinances of the city the health department is under the charge and control of a health commissioner, who performs the duties and exercises all the authority of the board of health. This authority is not curtailed by St. 1914, c. 627, which contains no express or implied repeal of R. L. c. 75, § 65. The order therefore was regularly issued.

It is urged, however, that the defendant was compelled to break the eggs before selling them for manufacturing purposes, and it offered evidence and made offers of proof tending to show that the regulation destroyed a well-known commercial product, and deprived the defendant of its property without due process of law. The evidence and offers of proof were excluded rightly. It was undisputed that the eggs in question ‘were decomposed spot and black rot eggs unfit for food, and no denaturant had been applied,’ and one Wilson, the president, told the police officer who investigated the company's methods of business, that he did not intend to denature the rotten eggs, or to comply with the regulation. The defendant company ‘were commission merchants dealing in butter, eggs and poultry for food,’ and also dealt in eggs in all stages of decay. No discussion is required to point out that eggs constantly decomposing even though stored and open in a small adjoining room could be found to be a constant menace to the wholesomeness of the butter, eggs, and poultry kept and sold for food. A regulative measure may require precautions to avoid possible danger, as well as to restrict conditions actually harmful. Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929,59 Am. Rep. 113.

It is also no defense that other dealers instead of breaking their own eggs sell them in the shell ...