COMMONWEALTH v. STAPLES

Board of Health. Water Supply. Great Pond. Municipal Corporations. Whether under R.L.c. 75, § 113, authorizing the State board of health to "make rules and regulations to prevent the pollution and to secure the sanitary protection, of all such waters as are used as sources of water supply," that board have power to make a regulation forbidding the cutting of ice on a great pond so used, without a permit in writing from that board, quaere.

Under St. 1897, c. 510, § 1, now R.L.c. 75, § 113, authorizing the State board of health to "make rules, regulations and orders for the purpose of preventing the pollution, and securing the sanitary protection" of such waters as are used as sources of water supply, that board have no power to make a regulation forbidding the cutting of ice, in a great pond so used, without a permit in writing from the board of water commissioners of the city in which the pond is situated, thus attempting to delegate to another board the right to grant or withhold such a permit.

LORING, J.

The regulation here in question was made under St. 1897, c. 510, § 1, (now R.L.c. 75, § 113,) which gives the State board of health "authority to make rules, regulations and orders for the purpose of preventing the pollution and securing the sanitary protection" of ponds used inter alia as sources of water supply.

It is not necessary to decide whether the principle acted on in Commonwealth v. Sisson, 189 Mass. 247, and in Brodbine v. Revere, 182 Mass. 598, would enable the State board acting under this statute to make a regulation requiring a permit to cut ice on such ponds.

However that may be, the act under which the regulation here in question was made does not authorize the board to delegate the granting or withholding of such a permit to another board, in this case the board of water commissioners of the city of Taunton. For this reason the regulation in question is void, and it does not become necessary to consider the other objections to it raised by the defendant.

Exceptions sustained.