Board of Health, Municipal: health commissioner of Boston. Boston. Food. Constitutional Law, Police regulation.
An order or regulation, "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 five per cent, or a denaturant of an equivalent strength, therein denatured by mixing them thoroughly," which was issued in February, 1918, by the health commissioner of the city of Boston, in charge of the health department of the city, was within the authority given by R. L. c. 75, § 65 (see now G.L.c. 111, § 122); and this authority was not curtailed by St. 1914, c. 627, which contained no express nor implied repeal of R. L. c. 75, § 65.
An order of a health department promulgated under G.L.c. 111, § 122, is not invalid by reason of the fact that it requires precautions to avoid possible danger to the public health as well as measures to restrict conditions actually harmful.
Evidence, offered by a corporation being tried upon a complaint for violation of the regulation above described, that it was compelled to break the eggs before selling them for manufacturing purposes and that the regulation destroyed a well known commercial product and deprived the defendant of its property without due process of law, that other dealers, instead of breaking their own eggs, sold them in the shell "to breakers to be carried away to breaking establishments" and that the eggs described in the regulation in their condition of rottenness could be sold to tanners for use in softening certain kinds of leather, properly was excluded, since the opening and retention of such eggs, undenatured, for any purposes could be found detrimental to the public welfare and the regulation was a reasonable one going no further than limiting the use of property in the interest of the health of the community.
The regulation above described was not in conflict with any provision of the State or of the Federal Constitution.
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 five 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, that R. L. c. 75, § 65 (see 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 opened 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.
It is also no defence that other dealers instead of breaking their own eggs sell them in the shell "to breakers to be carried away to breaking establishments." Commonwealth v. New York Central Hudson River Railroad, 202 Mass. 394. It was optional with the defendant whether it would deal in rotten eggs which must be broken in connection with other food products which it stored and sold. If it decided to adopt this course of business then it must comply with the regulation which has no reference whatever to wholesome and merchantable eggs.
The opening and retention of such eggs undenatured for any purpose could also be found detrimental to the public welfare, even if in their condition of rottenness they could be sold to tanners for use in softening certain kinds of leather. The regulation goes no further in limiting the use of property in the interest of the health of the community, nor does it exceed in restrictive scope, regulations and statutes which have been sustained as not having been in excess of the necessities of the case as viewed by the Legislature, or the constituted authorities to whom its powers of regulation have been delegated. Commonwealth v. Plaisted, 148 Mass. 375. Commonwealth v. Interstate Consolidated Street Railway, 187 Mass. 436. Commonwealth v. Sisson, 189 Mass. 247. Chase v. Proprietors of Revere House, 232 Mass. 88, and cases cited. Wheeler v. Boston, 233 Mass. 275.
The regulation also is not in conflict with the Federal Constitution. The property of the defendant is neither taken nor destroyed, and there is no discrimination in favor of one dealer from another dealer engaged in the same business. Barbier v. Connolly, 113 U.S. 27. Mugler v. Kansas, 123 U.S. 623. Murphy v. California, 225 U.S. 623.
A verdict for the defendant could not have been ordered, and the other rulings requested were properly denied for reasons sufficiently stated. In accordance with the terms of the report the verdict is to stand.
So ordered.