Druzik v. Bd. of Health of Haverhill

• Decision Date: 04 April 1949
• Citation: 85 N.E.2d 232,324 Mass. 129
• Parties: DRUZIK et al. v. BOARD OF HEALTH OF HAVERHILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 129

85 N.E.2d 232

DRUZIK et al.

v.BOARD OF HEALTH OF HAVERHILL.

Supreme Judicial Court of Massachusetts, Essex.

April 4, 1949.

Appeal from Superior Court, Essex County; Brogna, Judge.

Suit in equity by Vincent Druzik and others against the Board of Health of Haverhill to have a regulation of the defendant declared void. From a decree declaring the regulation void, the defendant appeals.

Decree reversed and decree entered declaring a portion of the regulation void and a portion valid.

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

Dean E. Nicholson, of Haverhill, for plaintiffs.

W. C. McDonald, City Sol., of Haverhill, for defendants.

WILKINS, Justice.

In this bill in equity the plaintiffs allege that they are owners and operators of manufacturing bakeries in the city of Haverhill, and seek that a regulation of the defendant board of health of that city be declared null and void. From a decree declaring that the regulation is ‘indefinite, arbitrary, unreasonable and void,’ the defendant board appeals.

The regulation, effective January 1, 1948, and set forth in the bill and admitted in the answer, is as follows: ‘All breads, rolls, biscuits, muffins and any other bakery products, which, in the opinion of the board of health, requires such protection, intended for sale or distribution within the limits of the city of Haverhill, before removal from the establishment wherein they are produced, shall be packed in suitable retail units by wrapping in cellophane, waxed paper or other approved material, sealed or fastened in such a way as to prevent contamination by dust, dirt, insects or careless handling. Said wrappings must be intact when the goods are delivered and no packages shall be opened prior to the final sale to individuals or consumers, except that restaurants, lunch rooms and the like shall be classed as consumers and entitled thereby to open said packages in order to serve smaller portions to their patrons. Bakery products of all kinds intended to be sold to consumers from within the bakery or building in which they are produced, without prior removal therefrom, may be displayed unwrapped in clean glass show cases or show windows so constructed as to afford satisfactory protection from contamination pending sale, but said products shall not be delivered to purchasers without being suitably wrapped or enclosed.’

The evidence is not reported, and there was no request for a report of the material facts found by the judge under G.L.(Ter.Ed.) c. 214, § 23, as appearing in St.1947, c. 365, § 2. The judge, however, filed a document entitled ‘Finding of material facts, rulings, and order for decree’ which we quote in its entirety: ‘I find that the rights which the plaintiffs seek to protect are personal rights; that the enforcement of the regulation will cause the plaintiffs irreparable loss. I find and rule that the regulation is indefinite, arbitrary, unreasonable and void. Let a decree be entered in accordance with the foregoing findings and rulings.’

The regulation of bakeries and bakery products has long been the subject of legislative enactment. G.L.(Ter.Ed.) c. 94, §§ 2-10; see also sections 10H-10K, inclusive, added to said c. 94 by St.1948, c. 444, § 2. With an exception, here immaterial, relating to rules and regulations of the State department of health, local ‘boards of health may make such further regulations as the public health may require’. G.L.(Ter.Ed.) c. 94, §§ 9D, 9F, as inserted by St.1937, c. 362, § 3. Criminal penalties are provided for violations of such regulations. G.L.(Ter.Ed.) c. 94, § 9E, as inserted by St.1937, c. 362, § 3. The regulation in question was apparently adopted under the statute just cited. As the board had this specific authority, we merely refer to the general authorization to local boards of health to ‘make reasonable health regulations' under G.L.(Ter.Ed.) c. 111, § 31, as amended by St.1937, c. 285.

1. We first must decide whether the modifying clause in the first sentence of the regulation, ‘which, in the opinion of the board of health, require such protection,’ refers only to its immediate antecedent, ‘any other bakery products,’ or whether it equally refers to ‘all breads, rolls, biscuits, muffins.’ ‘It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.’ Hopkins v. Hopkins, 287 Mass. 542, 547, 192 N.E. 145, 147, 95 A.L.R. 1286;Hurley v. Lynn, 309 Mass. 138, 145, 34 N.E.2d 520; West's case, 313 Mass. 146, 149, 46 N.E.2d 760. We think that the general rule applies. This construction seems required by the use of the word ‘any’ in contrast with the earlier use of the word ‘all.’ Our view is that this part of the regulation does not apply to all breads, rolls, biscuits, and muffins, but relates only to such other bakery products as, in the opinion of the board, require wrapping.

2. We next consider to what extent the regulation may be invalid. The provision last referred to, for the wrapping and sealing or fastening of ‘any other bakery products' (apart from the four products specifically enumerated) which in the opinion of the board require such protection, cannot be upheld. It prohibits nothing specific. Appropriate definiteness is lacking. Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 86 L.Ed. 226. Being penal in character, the regulation should be so clearly expressed that those who may be subject thereto should not have to guess at its meaning. Commonwealth v. Daniel O'Connell's Sons, Inc., 281 Mass. 402, 183 N.E. 839;McQuade v. New York Central Railroad Co., 320 Mass. 35, 40, 68 N.E.2d 185;Commonwealth v. Slome, 321 Mass. 713, 715, 75 N.E.2d 517;Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322;Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888;Winters v. New York, 333 U.S. 507, 515-516, 68 S.Ct. 665. This part of the regulation contains no standards for the guidance of those whom it purports to make subject to its terms. Commonwealth v. Maletsky, 203 Mass. 241, 245-246, 89 N.E. 245, 24 L.R.A.,N.S., 1168. See Goldstein v. Conner, 212 Mass. 57, 59, 98 N.E. 701;Commonwealth v. Atlas, 244 Mass. 78, 82. It could lead to arbitrary and discriminatory action. Inhabitants of Winthrop v. New England Chocolate Co., 180 Mass. 464, 466, 62 N.E. 969. Compare Heerdt v. Portland, D.C.Or., 8 F.2d 871, 872;Bultman Mortuary Service, Inc., v. New Orleans, 174 La. 360, 365, 140 So. 503; McQuillin, Municipal Corporations (2d ed.) s. 783; Compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.

3. The plaintiffs contend that the entire regulation is invalid as matter of law. One ground of this objection is that in the statute regulating bakeries and bakery products there are references in two sections to ‘unwrapped bread,’ from which it is argued that ‘the Legislature had no intention of requiring bread to be wrapped.’ It may be noted that this is not the same as an affirmative intention that no local board could in its discretion by a proper regulation require bread to be wrapped. The first of these sections is G.L.(Ter.Ed.) c. 94, § 4, which prohibits the use in bakery products of any ingredient which is ‘spoiled or contaminated or which may render the product unwhole-some, unfit for food or injurious to health’ (see Johnson v. Stoddard, 310 Mass. 232, 37 N.E.2d 505) or which ‘lessens the nutritive value of such product unless the product is plainly so labelled, branded or tagged, or has thereon a sign making plain to the purchaser or consumer the actual ingredients thereof; provided, that in the case of unwrapped bread to be sold by the loaf such labelling, branding or tagging shall be placed upon the label required under section eight, showing the name of the manufacturer and the net weight of the loaf.’ The second of these sections is G.L.(Ter.Ed.) c. 94, § 8, as appearing in St.1937, c. 53, which provides: ‘Unit weights, as defined in the preceding section, shall not apply to rolls or to fancy bread weighing less than four ounces, nor to loaves bearing in plain position a plain statement of the weight of the loaf and the name and business address of the manufacturer thereof. Such information shall be stated in case of wrapped bread, upon the wrapper of each loaf * * *. In the case of unwrapped bread such information shall be stated upon a printed label [of designated dimensions]. No label, attached to an unwrapped loaf, shall be larger than provided herein, nor shall any such label be affixed in any manner or with any gum or paste which is unsanitary or unwholesome.’ See Doyle v. Continental Baking Co., 262 Mass. 516, 519, 160 N.E. 325. The plaintiffs' contention based upon section 4 and section 8 cannot be sustained. The requirement in section 4 as to where labels disclosing inferior nutritive qualify shall be placed on wrapped and unwrapped loaves, and the provisions in section 8 (not affecting rolls or fancy bread weighing less than four ounces) compelling a statement as to weight and the name of the manufacturer and prescribing a method of affixing all labels to unwrapped loaves do not evince an intent that ‘all breads, rolls, biscuits, muffins' are to be exempt from local health regulations requiring wrapping.

4. The plaintiffs also contend that the entire regulation is repugnant to G.L.(Ter.Ed.) c. 94, §§ 2, 3.¹ They rely upon the familiar principle that where a subject has been fully regulated by statute, it cannot be further regulated by an administrative officer or board. They cite Commonwealth v. McFarlane, 257 Mass. 530, 154 N.E. 83, and Commonwealth v. Johnson Wholesale Perfume Co., Inc., 304 Mass. 452, 457, 24 N.E.2d 8. See Commonwealth v. Baronas, 285 Mass. 321, 322, 189 N.E. 62;Borggaard v. Department of Public Works, 298 Mass. 417, 10 N.E.2d 724. We are of the...