CITY OF WALTHAM vs. CHARLES F. MIGNOSA.

SPALDING, J. This bill in equity is brought to enjoin an alleged violation by the defendant of a health regulation and his continuing to maintain his property in such a manner as to constitute a nuisance. The case comes here on the plaintiff's appeal from a final decree dismissing its bill.

By virtue of Spec. St. 1919, c. 114, Section 1, the powers of the board of health in the city of Waltham were vested in a

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newly created public welfare commission, hereinafter called the commission. The commission has adopted certain regulations pertaining to the keeping of domestic animals, which provide in part: "No person, firm or corporation shall keep cows, swine, goats, roosters, fowl, ducks, pigeons or rabbits within the City without a permit from the . . . [commission]. Such permit may be granted at the discretion of the [commission] and shall not be transferable." For approximately twenty-four years the defendant has operated a farm or truck garden including the keeping of turkeys and hens on several acres of land in Waltham located within several hundred feet of a public school. As part of his truck farming operations the defendant each year raises large quantities of vegetables which he sells at wholesale and retail. The farm also produces several hundred eggs a day which are sold in the same manner. The zoning laws permit nurseries, truck gardens, farms, and greenhouses in the area in which the defendant's farm is located. For several years the defendant had a permit from the commission to keep two thousand hen fowl, but his last permit expired on April 30, 1949. His application for a renewal of the permit was denied and he was so informed.

The foregoing facts were submitted to the judge in a statement of agreed facts and it was agreed that they were all the facts material to the issues raised by the pleadings.

We need not consider the issue of nuisance on which the plaintiff's bill is based in part because the facts do not establish a nuisance. Since the defendant concedes that he is now operating a turkey farm without a license, the question narrows down to whether the regulation which forbids him from doing so is valid and whether he may be enjoined from violating it.

We are of opinion that the regulation in question and its application to the facts here can be rested upon that portion of G. L. (Ter. Ed.) c. 111, Section 143, as appearing in St. 1948, c. 480, Section 1, which provides in part that "No trade or employment which may result in a nuisance or be harmful to the inhabitants, injurious to their estates, dangerous to the

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public health, or may be attended by noisome and injurious odors shall be established in a city or town except in such a location as may be assigned by the board of health thereof . . . and such board of health may prohibit the exercise thereof within the limits of the city or town or in places not so assigned, in any event . . ." (emphasis supplied). It will be noted that the trade or employment need not in fact be a nuisance or attended by noisome and injurious odors before the power of prohibition arises. [Note p252-1] Although not per se a nuisance, it is conceivable that there might be circumstances where the raising of a large number of hens and turkeys might become one (Tracht v. County Commissioners of Worcester, 318 Mass. 681), and it is not unlikely that such an operation would or might be attended by noisome and injurious odors. In view of the approval by this court of regulations enacted under Section 143 and the earlier provisions from which that section stems, it is not open to the defendant to argue that the regulation here involved is unreasonable. See Taunton v. Taylor, 116 Mass. 254 (regulation forbidding the exercise of the trade of "preparing tripe, manufacturing neat's-foot oil, tallow and gluestock, and the boiling and trying of bones, hoofs, heads, refuse and partially decayed animal matter"); Quincy v. Kennard, 151 Mass. 563 (regulation forbidding the keeping of swine within the town without a permit); Lexington v. Miskell, 260 Mass. 544 (same); Swansea v. Pivo, 265 Mass. 520 (regulation forbidding the keeping of swine and the dumping of garbage within the town limits without a permit). The general power of boards of health to make regulations is found in G. L. (Ter. Ed.) c. 111, Section 31, as amended by St. 1937, c. 285, which provides that such boards "may make reasonable health regulations."

The defendant is not aided by the fact that his farm is located in an area where farming is permitted under the

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zoning laws. The regulations promulgated by a board of health pursuant to Section 143 must not contravene the zoning laws, but the fact that a trade or employment is permitted under such laws does not mean that it need not also comply with valid orders and regulations of a board of health. Building Commissioner of Medford v. C. & H. Co. 319 Mass. 273, 282, 286.

Although by virtue of Section 31, as amended, criminal sanctions are imposed for the violation of the regulation here involved, the defendant rightly does not argue that its enforcement in equity would collide with the principle discussed and applied in Commonwealth v. Stratton Finance Co. 310 Mass. 469, and Malden v. Flynn, 318 Mass. 276, 282. Those cases point out that the trend of our decisions is hostile to the development of a "criminal equity" and that, with certain exceptions, the jurisdiction of a court of equity cannot be invoked to enjoin the violation of criminal laws in the absence of a statute conferring such jurisdiction. But here the statute (G. L. [Ter. Ed.] c. 111, Section 187) provides that "The supreme judicial or superior court, upon the application of the board of health of a town, [Note p253-1] may enforce the orders [Note p253-2] of said board relative to public health. Sections thirty-four and thirty-five of chapter two hundred and fourteen shall apply to such cases . . .." It is true that the statute does not specifically confer equitable jurisdiction as did its predecessor, R. L. c. 75, Section 141, but we do not regard the omission to do so as significant. See Scaccia v. Boston Elevated Railway, 317 Mass. 245, 251; Carter v. Burgess, 323 Mass. 295,300. The sections of c. 214 just referred to are those relating to the framing of jury issues in equity cases. The language of Section 187 conferring power on this court and the Superior Court to "enforce the orders of said board"

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would have little meaning if it did not include jurisdiction in equity, for the most effective method of enforcing such orders apart from the criminal penalties would generally be on the equity side of the court. The fact that that power was conferred on both this court and the Superior Court makes it very unlikely that Section 187 had to do with the imposition of criminal penalties, especially since the Superior Court already possessed that power under other provisions. We need not decide whether apart from Section 187 the regulation could be enforced in equity. See Swansea v. Pivo, 265 Mass. 520, 522; Commonwealth v. Stratton Finance Co. 310 Mass. 469, 473. Nor are we here concerned with what remedy, if any, the defendant might have had under G. L. (Ter. Ed.) c. 111, Section 147, in a case like the present one, for it does not appear that he took any of the steps that that section requires. See Lexington v. Miskell, 260 Mass. 544, 546-547; DeVincent v. Public Welfare Commission of Waltham, 319 Mass. 170, 171.

The decree dismissing the bill is reversed and a new decree is to be entered enjoining the defendant from violating the regulation herein discussed. The plaintiff is to have costs of this appeal.

So ordered.