Ralston v. Hawes

• Decision Date: 09 April 1956
• Citation: 334 Mass. 51,133 N.E.2d 589
• Parties: Frederick R. RALSTON et al. v. L. Roy HAWES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 589

133 N.E.2d 589

334 Mass. 51

Frederick R. RALSTON et al. v. L. Roy HAWES et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 9, 1956.

Decided April 9, 1956.

Edward O. Proctor, Edward O. Proctor, Jr., Boston, for plaintiffs.

Fred L. True, Jr., Asst. Atty. Gen., for defendants.

Before QUA, C. J., and RONAN, WILKINS, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The plaintiffs are in the business of raising, buying, and selling swine the Commonwealth of Massachusetts in the course of which they feed garbage to swine. The defendants are respectively commissioner of agriculture and director of live stock disease control for the Commonwealth. The plaintiffs seek a declaratory decree in respect of and an injunction against the enforcement of certain regulations contained in Order No. 52 promulgated by the defendants and approved in council January 27, 1955. The agreed facts state that there is a controversy between the parties as to whether the order is valid and enforceable, G.L. (Ter.Ed.) c. 231A, §§ 1, 2, St.1945, c. 582. The case was reported to this court without decision. Substantially no facts are shown other than those stated in this paragraph.

The terms of the order ¹ show that it is concerned with the control and eradication of the disease in swine called vesicular exanthema.

Our statutes, G.L. (Ter.Ed.) c. 129, §§ 14A and 14B, inserted by St.1953, c. 19 and c. 655, and the regulation, inform us in substance that vesicular exanthema is a disease which it is public policy to eradicate (see the emergency preamble) and that it is a disease of swine in the control of which garbage fed to swine must be cooked.

Federal regulations to which the defendants have made reference in the brief and which are not referred to in the record state more about the disease. As this case was reported without decision and the references which are made to the Federal regulations do not appear to suggest that evidence bearing thereon might have been adduced by the plaintiffs if the regulations had been earlier referred to, or that the plaintiffs will be otherwise prejudiced, we think this is an appropriate case for us to take judicial notice of the contents of the Federal Register, although it is clear that we are not required to do so where the subject material was not referred to below. Mastrullo v. Ryan, 328 Mass. 621, 622, 105 N.E.2d 469. The contents of the Federal Register are the subject of judicial notice by this court. U.S.C. (1952 ed.) Title 44, § 307 [44 U.S.C.A. § 307]. Morrison v. Hutchins, 158 Kan. 123, 144 P.2d 922; Mogul Transportation Co. v. Larison, 181 Or. 252, 181 P.2d 139; Weatherford v. Coffin, Tex.Civ.App., 187 S.W.2d 406. Hall v. Bucher, 240 Mo.App. 1239, 227 S.W.2d 96; Broadway Federal Savings & Loan Association v. Howard, 133 Cal.App.2d 382, 285 P.2d 61; See Petition of Mazurowski, 331 Mass. 33, 39, 116 N.E.2d 854; Glover v. Mitchell, 319 Mass. 1, 3-4, 64 N.E.2d 648; Mastrullo v. Ryan, supra. We notice the regulations not for proof of the facts alleged therein in respect of vesicular exanthema, but for proof of the facts that a Federal officer charged with responsibility in the field has said what he has said about the disease and has stated that certain controls are required and has imposed regulation accordingly.

A Federal regulation issued under U.S.C. (1952 ed.) Title 21, §§ 120, 111, 123, 125, and 117 [21 U.S.C.A. §§ 120, 111, 123, 125, 117] 9 CFR § 76.26; 18 Fed.Reg. 3636, dated June 20, 1953, gives notice that vesicular exanthema is prevalent, is extremely virulent, is disseminated rapidly, is carried in virus infected meat scraps in raw garbage, and is causing great loss to livestock owners, the packing industry, and the consuming public. An earlier declaration of policy, 18 Fed.Reg. 2358, issued April 17, 1953, states also that 'each occurrence of the disease creates uncertainty lest it be an outbreak of the more dangerous foot-and-mouth disease, which would affect not only swine, but also cattle, sheep, and goats'; and that effective procedures include prompt disposition of infected and exposed animals, the cleaning and disinfecting of premises exposed to the disease as well as vehicles, yards, pens, and other facilities used in handling swine, and the cooking of garbage or special processing of the products of swine fed on raw garbage.

Prior to the adoption of the subject regulation there was Federal quarantine of part of Massachusetts in respect of vesicular exanthema which has continued. See 17 Fed.Reg. 10137; 19 Fed.Reg. 1367, 7178, 7870; 21 Fed.Reg. 1461, and references therein.

The plaintiffs assert that sections 2, 3, 4, and 6 of the order are in excess of the authority of the director. Sections 1, 5, and 7 of the order are not attacked.

The defendants assert that full statutory authority for the order is found in G.L. (Ter.Ed.) c. 129, § 2, under reference to which it was issued. This statute provides in part: 'The director may make and enforce reasonable orders, rules and regulations relative to the following: the sanitary condition of * * * swine and of places where animals are kept; the prevention, suppression and extirpation of contagious diseases of domestic animals * * * the inspection, examination, quarantine, care and treatment or destruction of domestic animals affected with or which have been exposed to contagious disease * * * and the cleansing and disinfection of places where contagion exists or has existed. No rules or regulations shall take effect until approved by the governor and council.'

The plaintiffs contend that in those parts of c. 129 which make specific reference to vesicular exanthema, namely, §§ 14A and 14B, the Legislature has set forth the specific ways in which the disease, vesicular exanthema, shall be combatted, and that this has limited the general power which the director might otherwise have under § 2. ²

We do not think that the director in combatting vesicular exanthema was deprived of all authority under § 2 because of the enactment of §§ 14A and 14B.

Chapter 129 has grown by accretion and does not show the tightness of structure and relevance of all parts to a single unifying concept in the drafting which would bring to the forefront considerations of close and consistent construction. We are aware of the practical consideration that even with an existing general power it may be a great aid to administrative officers like the director and commissioner here to have specific legislative authority, so far as it can be secured, to take drastic steps for the eradication of disease which will interfere with established business practices and impose unexpected losses. Knowledge of how to combat disease increases with experience, study, and research. The seriousness of the problem may increase at any time. Steps deemed adequate when determined upon may prove inadequate when tried or under changed conditions. The fields of health and the prevention, control, and extirpation of disease are particularly areas where a general power to act promptly and plenarily is essential. Such power if expressly given in such fields is not to be cut down by implication unless it is so strong as to make the intention surely and emphatically manifest.

The subject regulation in the aspects which the plaintiffs contest is, as it purports to be, substantially a regulation of transportation. The emphasis of §§ 14A and 14B of the statute is on regulation of swine in place and of the places where they are kept and these sections do not deal specifically with transportation as such. Section 14A provides that 'The director shall make such rules and regulations in respect to the importation into the commonwealth of such animals or products therefrom [affected animals and products processed from them] as he may deem necessary.' While interstate commerce involves transportation within the State it has connotations which might suggest the advisability of specific authorization to affect it.

If is of some significance, as the plaintiffs assert, that § 36D of c. 129, inserted by St. 1954, c. 647, § 3, is a specific statutory regulation of the transportation of cattle as a means of controlling brucellosis, and that in § 40, as appearing in St.1946, c. 316, § 1, and § 41, inserted by St.1941, c. 607, § 1, there is other specific statutory regulation of the transportation of bovine animals. But for the reasons already stated we do not think that these evidences of a loose and somewhat inconsistent statutory frame of reference require a holding of lack of authority for the subject regulation under § 2 of the statute.

The regulation of transportation as contained in the subject order was reasonable and within the director's power. The requirement of section 2 of the regulation that any person who transports swine upon any public way in connection with the purchase or sale thereof shall have in his possession a certificate of movement or a health chart which 'shall contain the name and address of the owner or vendor of such swine, the date of purchase or sale, the date of departure from original premises, the number of swine, some means of identification, and the destination of movement,' is not invalid because it applies to all swine whether or not diseased. Keeping track of origin, destination, and movement of swine is an obvious way to take first steps in controlling, preventing, and extirpating a disease of swine. All swine have to be looked at and otherwise dealt with in order to combat a disease that may be manifest or latent in any of them. It is obvious that transportation of animals presents hazards in respect of spreading disease which do not exist while the animals are kept in place in feeding pans or on the farm. All reasonable presumptions are to be made in favor of such a regulation. Bruzik v. Board of Health of Haverhill, 324 Mass. 129, 138, 85 N.E.2d 232. What Federal authorities within their statutory orbit had said...