CITY OF REVERE vs. MAX RICEMAN & another.

PIERCE, J. This is a bill in equity wherein the plaintiff seeks to enjoin the defendants,from maintaining a slaughter house at 295 Revere Street, Revere, or from carrying on the trade or business of keeping, slaughtering and selling of fowl until the further order of the court.

At the trial in the Superior Court the parties submitted the case on a "Statement of Agreed Facts." These facts summarized in substance are as follows: On August 6, 1931, the defendant Max Riceman had a license to conduct a slaughter house at 295 Revere Street, Revere. This license was originally granted and became operative in 1910 and continued to be exercised thereafter for more than twenty years. By the terms of the license Riceman was allowed to keep, slaughter and sell fowl at 295 Revere Street, Revere. On March 16, 1931, the owner of the premises, the defendant Safferson, received notice from the building inspector of the city of Revere to the effect that the building at 295 Revere Street being used for a slaughter house "is in an unsanitary and deplorable condition and is also condemned." On May 29, 1931, the board of health of the

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city of Revere revoked "the license granted to Mr. Max Riseman [sic] ... for the carrying on of an offensive trade." A few days thereafter plans and specifications for a new building were submitted to the board of health by the owner which indicated that in place of the old building a new brick and tile building was to be erected at said 295 Revere Street, Revere, for the purpose of carrying on the business of keeping, slaughtering and selling fowl. On July 2, 1931, the board of health held a meeting and voted to "re-consider previous motion of May 29, 1931, and allow Max Riseman ... to continue in his present business, the keeping, killing and selling of fowl at No. 295 Revere Street, Revere." On July 2, 1931, on a motion made and seconded the board of health voted "that plans and specifications of Mr. Max Riseman, [sic] of No. 295 Revere Street, Revere, for a slaughter house be submitted to the Board of Health Office within one week from date of receiving notice and that he proceed to build within two weeks from said date." On July 6, 1931, the board of health approved the plans and specifications and on the same day the construction of the building was begun. On August 6, 1931, the board of health passed the vote which follows: "VOTED: To prohibit the exercise of the trade or employment, to wit: Of the business of keeping and maintaining a place for the keeping and slaughtering of fowl on the premises numbered 295 on Revere Street in said Revere, which is a nuisance and hurtful to the inhabitants, injurious to their estates, dangerous to the public health, and is attended by noisome and injurious odors, and the exercise of said trade is hereby prohibited at said place, and that one Max Riseman, [sic] the proprietor of said business, and one Celia Safferson, the owner of said premises, shall be notified forthwith of the making of this order." On August 10, 1931, the defendants filed an appeal under G. L. c. 111, § 147. On September 1, 1931, the building was completed and in place of the old building there was erected a new, modern brick and tile sanitary structure, with all modem implements, in accordance with the plans and specifications submitted to the board of health. The

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building was duly accepted by the building department of the city of Revere. The defendants Riceman and Massachusetts Live Poultry Company, a corporation duly organized by law, "have ever since said August 6, 1931, engaged in the business of selling, Slaughtering and keeping of fowl in said new building since its erection on September 1, 1931." On September 15, 1931, the proceedings in the appeal under G. L. c. 111, § 147, were dismissed "without prejudice."

At the trial in the Superior Court there were sixty-four requests for rulings by the defendants. Of these the judge granted twelve and denied fifty-one. As to request twelve he denied so much as stated ". . . that the nuisance, if it existed, was abated by the erection of the new building," and granted the rest.

In his decision, which is made a part of the record, the judge ruled rightly that, under G. L. c. 111, § 151, the board of health was without power in 1931 to grant "consent and permission" to Riceman "to build a new building, with certain provisos the terms of which were apparently fulfilled," because Revere at that time was a city and not a "town having a population of more than five thousand." [Note p80] He properly assumed that the license to conduct a slaughter house was issued in 1910 under R. L. c. 75, § 91, now G. L. c. 111, § 143, and that a place for the exercise of the license so granted was assigned by the board of health and was revocable by it when the board should think proper, under that statute. He further rightly construed the vote of reconsideration on July 2, 1931, as an affirmative and formal making of a new assignment of the premises in question, whatever may have been the state of the buildings as a place for the exercise of a noisome trade under G. L. c. 111, § 143. The ruling, that the board of health could not bind itself irrevocably to a promise that under § 143 the new building on completion would be assigned as a place for the exercise of the defendants' business, was right, the

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power to authorize the erection of the building abiding in the building commissioner alone. The inference of the trial judge that the action of the board of health on August 6, 1931, prohibiting the further exercise of the business on the premises was directed at the business as carried on in the old building then partly or wholly demolished, and the inference that not until September 1, 1931, was the new building completed and ready for carrying on the business therein, were reasonable from the agreed facts. The trial judge notes that the agreed facts do not reveal any assignment by the board of health under said § 143 of the new building or the land on which it stands as a place for carrying on a noisome business, nor any written consent and permission of the mayor and city council under said § 151, and finds on the agreed facts that a noisome trade is being carried on in the new building by Riceman and the Massachusetts Live Poultry Company with the permission of Safferson, without any sanction by any municipal authority and contrary to the order of prohibition of August 6, 1931.

The final decree ordered (1) "That the bill be dismissed as against the Massachusetts Live Poultry Company, without costs"; (2) "That the defendant Max Riceman be and hereby is permanently enjoined from using and maintaining the premises numbered 295 Revere Street, Revere, as a place for the exercise of the trade or employment of keeping and slaughtering live fowl"; and (3) "That the defendant Celia Safferson be and hereby is permanently enjoined from permitting the use and maintenance by any person or corporation of the said premises as a place for the exercise of the trade or employment of keeping and slaughtering live fowl." The defendants appealed from the final decree.

The defendants contend (1) "that the board of health of the city of Revere, could not revoke, through its order of prohibition, a vested property right"; (2) that "The source of the defendants' original authorization to do business, and the subsequent actions of the board of health in the city of Revere, indicate that their authority sprang from R. L. c. 75, § 108, and its successor, G. L. c. 111, § 151"; and (3) that "The board of health of the city of Revere was

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estopped, after granting permission to the defendant to do business, and erect a new building, on July 2, 1931, from revoking its permit on August 6, 1931. In addition, the writ of prohibition of August 6, 1931, could not have been properly issued against the new building, because it was not in existence at that time."

The first position is manifestly unsound. Under G. L. c. 111, § 143, the board of health had authority to grant certain places for the exercise of any trade or employment which is a nuisance or hurtful to the inhabitants and may prohibit the exercise thereof within the limits of the town or in places not so assigned. It is plain that the acts done by the board of health are within its jurisdiction; that the only method of review is by the appeal provided by said § 147; and that this right of appeal was availed of by the defendants and subsequently abandoned "without prejudice."

The principal argument of the defendants for the reversal of the final decree rests upon their contention that the board of health had no right to revoke a license granted under R. L. c. 75, § 108, now G. L. c. 111, § 151. Because Revere is a city and not a town this may be conceded, but the board of health of both city and town, by the provisions of R. L. c. 75, § 91, now G. L. c. 111, § 143, has express authority to revoke a permit to exercise in a particular place, building or otherwise, a trade or employment such as is described in G. L. c. 111, § 143. Cambridge v. Trelegan, 181 Mass. 565. It is manifest that an assignment of a place to exercise a trade or employment such as is described in R. L. c. 75, § 91, (G. L. c. 111, §143,) does not create a vested right in the donee of the privilege granted, and that a revocation of such a privilege does not deprive such a person of any constitutional rights. A donee of a privilege to exercise a trade or employment of the character described in R. L. c. 75, § 91, (G. L. c. 111, § 143,) may rightfully be deprived of the enjoyment of such a privilege whenever in the opinion of the board of health the continuance of such a trade or employment has become hurtful to the inhabitants, injurious to their estates, dangerous to the public health or is attended by noisome and injurious

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odors. Lexington v. Miskell, 260 Mass. 544. Ryder v. Lexington Board of Health, 273 Mass. 177. This is but an exercise of the police power, and the privilege granted may be assumed to have been accepted by the donee upon the understanding that such reserved power of revocation may be exercised by the board of health. The case at bar does not fall within the rule that a license once granted is not revocable unless the right to revoke is expressly or impliedly reserved. See Lowell v. Archambault, 189 Mass. 70; General Baking Co. v. Street Commissioners, 242 Mass. 194. We find no reversible error in the refusal to give the requested rulings.

Decree affirmed with costs.