Commonwealth v. Feeney

• Decision Date: 22 May 1915
• Parties: COMMONWEALTH v. FEENEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 323

108 N.E. 1068

COMMONWEALTH v. FEENEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1915

COUNSEL

A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth.

Clarence W. Rowley and Wm. J. Foley, both of Boston, for defendant.

OPINION

BRALEY J.

The facts not being in controversy, the question of the defendant's guilt or innocence depends upon the validity and meaning of R. L. c. 91, §§ 113, 114. The general right of the inhabitants from the earliest times to take within the flats and tidal waters of the commonwealth, shellfish for the use of their families, while made subject to legislative regulations as to quantity, has never been denied. Dill v. Wareham, 7 Metc. 438, 446, 447; Com. v Bailey, 13 Allen, 541; Williams v. Delano, 155 Mass. 10, 28 N.E. 1122; R. L. c. 91, §§ 100, 101, 102. But when in the course of time the density of population had so increased that certain portions of such waters and flats became impregnated with sewage or deleterious substances from manufacturing establishments which affected and poisoned the imbedded shellfish, the Legislature apparently for the protection and preservation of the public health enacted St 1901, c. 138, now R. L. c. 91, § 113, authorizing the state board of health upon complaint to delimit the contaminated area, and authorizing the board to request in writing the commissioners on fisheries and game to prohibit the taking therefrom of oysters, clams, quahogs and scallops. The commissioners upon receiving the request are required to prohibited the taking of shellfish from the waters thus designated during such period of time as the board shall have prescribed, although by St. 1907, c. 285 clams and quahogs may be taken for bait only, by any person having a permit in writing from the local board of health. See also St. 1911, c. 411, § 10. By section 114, upon the issuance and publication of the order of prohibition its violation is made a misdemeanor punishable by fine. The statute is a valid exercise of the authority given by part 2, c. 1, § 4, of the Constitution, to enact 'all manner of wholesome and reasonable orders, laws, statutes and ordinances' even if legislative functions to determine whether the conditions referred to in the statute exist, are conferred upon the state board of health, without giving to parties who may be interested an opportunity to appear and be heard. Com. v. Sisson, 189 Mass. 247, 252, ...