Manual of the laws relating to the public health : the powers and duties of boards of health, state inspectors of health, medical examiners and others and to the registration of vital statistics : with decisions of the Supreme Court of Massachusetts relative thereto / prepared by the Secretary of the State Board of Health.

  • Massachusetts.
Date:
1908
Catalogue details

Licence: Public Domain Mark

Credit: Manual of the laws relating to the public health : the powers and duties of boards of health, state inspectors of health, medical examiners and others and to the registration of vital statistics : with decisions of the Supreme Court of Massachusetts relative thereto / prepared by the Secretary of the State Board of Health. Source: Wellcome Collection.

Provider: This material has been provided by the Francis A. Countway Library of Medicine, through the Medical Heritage Library. The original may be consulted at the Francis A. Countway Library of Medicine, Harvard Medical School.

    157/204 (page 141)
    An order by the selectmen of a town, acting as a board of health, for- bidding the exercise of an offensive trade or employment therein, need not be served by an officer. If the selectmen of a town, acting as a board of health, after passing a general order, under Gen. Sts., c. 26, § 52, forbidding the exercise of an offensive trade or employment therein, without first giving notice to those who at the time were engaged in carrying on the same, and after giving notice of the passage of such order to a person so employed, subsequently, and before the expiration of the three days allowed by § 56 for an appeal there- from, give notice to such person of the presentation of a petition to them, praying for the passage of a similar order upon him, and appointing a time and place for a hearing, and if they do this with the intention of preventing him from availing himself of his right of appeal from the order which they have already passed, and he is thereby so prevented, and thereby loses his right of appeal, this court will not enforce the order of the board of health by a process in equity. And if they have done this without an intention to mislead him or to deprive him of his right of appeal, but he and his counsel have been actually mistaken in regard to his right to appeal from the order, and he has lost his appeal by reason of this mistake, and the consequences to him will be serious, this court in its discretion may and will refuse to enforce the order. Winthrop v. Farrar, 11 Allen, 398. In the above case (Belcher v. Farrar, 8 Allen, 327) Bigelow, C.J., says: If, as preliminary to the exercise of any jurisdiction over the subject-matter, the selectmen were required to give notice to all persons exercising offensive trades or employments within the limits of the town of their intention to prohibit the continuance of them, it would follow necessarily that such persons would have a right to appear and object, and ask for a hearing and trial on the question whether the use of their property was hateful or noxious, so as to fall within any of the classes contemplated by the statute. This would often lead to pro- tracted examinations, which might occupy days or weeks. If, in the mean time, the alleged offensive and noisome trades might be carried on, great injury to health might be occasioned; and it would be impossible to prevent the evils which it was the manifest object of the statute promptly to suppress. It is questionable whether the prohibition of offensive trades is a proper subject of a by-law or ordinance, because that matter is specially provided for by statute; and to prohibit their exercise in any particular locality in a town or city by by-law or ordinance would interfere with the right of appeal to a jury which the statute secures. Commonwealth v. Patch, 97 Mass. 223. The keeping of swine cannot be considered a trade within the meaning of the law, and would be a proper subject of a by-law or ordinance. Commonwealth v. Patch, 97 Mass. 223. But see 135 Mass. 526, which holds that keeping of swine is, in certain cases, an employment, and that in prohibiting its exercise the board must proceed under R. L., c. 75, §§ 91, 94, 95 and not under § 65. The Legislature in the exercise of its police power may prohibit the use of any building in cities or towns of a certain population for carrying on, without permission of the mayor and aldermen or selectmen, a trade necessary