BOARD OF HEALTH OF FRANKLIN & another vs. JOHN R. HASS & others.

CUTTER, J. This is a bill in equity brought (see G. L. c. 111, Section 187) by the board of health of Franklin [Note 1] (the board)

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and by the town of Franklin on May 5, 1959, to enjoin the defendants from using certain land for the purposes of a piggery and to require them to remove all pigs. The facts are stated as agreed by the parties.

In September, 1956, the defendants John and Joseph Hass (the lessees) leased from another defendant, Garelick, about fifty-four acres of land (the locus) upon which a piggery had been conducted since about 1930.

The board adopted rules and regulations, in precisely the language (apart from the name of the town) of the regulations held to be valid in Cochis v. Board of Health of Canton, 332 Mass. 721, 722, 724. These regulations forbade any piggery within Franklin. A piggery was defined as the "keeping of four pigs or more at any one time." On June 22, 1957, the board caused a copy of the rules and regulations to be served upon the lessees, together with an order under G. L. c. 111, Section 143, as amended through St. 1956, c. 275, Section 1, dated June 21, 1957, stating that the business of raising pigs conducted upon the locus had been found to be a nuisance and directing removal of the pigs prior to July 25, 1957. The constant average number of pigs maintained on the locus varies from 2,500 to 4,000 and the annual gross volume of the business varies from $250,000 to $500,000. The piggery is located in a rural area. In 1944, prior to the lease to the lessees, residents of Franklin asked the county commissioners to abate the nuisance but the commissioners declined to act.

Upon receipt of the order, a petition for a jury trial in accordance with G. L. c. 111, Section 147 (as amended by St. 1948, c. 480, Section 2), was filed in the Superior Court on June 25, 1957. A motion to dismiss this petition was allowed, because it appeared that the lessees and Garelick had not complied with the board's order pending the decision of the petition (see G. L. c. 111, Section 148, quoted infra). An appeal was taken to this court, but was not seasonably perfected. This court refused to allow the appeal to be entered late (see G. L. c. 211, Section 11, as amended by St. 1933, c. 300, Section 1; since amended by St. 1960, c. 207, Section 1) on the ground that "no

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meritorious question of law . . . [was] presented." Garelick was an intervener in that earlier proceeding. The board has never given to the lessees or Garelick "a trial, hearing or conference, concerning the . . . operation of the" piggery. The lessees and Garelick "have never had a hearing or trial in any court . . . on the merits . . . of the contention . . . that the . . . [piggery] constitutes a nuisance, or is attended by noisome odors, or is injurious to the public health and welfare."

The trial judge ruled, among other things, (1) that the board's rules and regulations were valid; (2) that the board was empowered to adopt them without notice to the lessees or granting them a hearing, a view clearly warranted by Revere v. Blaustein, 315 Mass. 93, 95; (3) that the board's action was not arbitrary or capricious; (4) that enforcement of the board's order does not violate either the Federal or the State Constitution; and (5) that the lessees' and Garelick's refusal "to obey the order of prohibition pending their appeal . . . for a jury trial, precluded . . . [them] from showing in this suit that their business was not a nuisance or that the board was not acting in good faith." From a final decree permanently enjoining the lessees and Garelick "from using the . . . [locus] for the purpose of . . . a piggery" and directing that "they remove all pigs . . . within thirty days," the lessees and Garelick appealed.

The somewhat overlapping statutes permitting any board of health to regulate and to prohibit piggeries have recently been discussed in Board of Health of Woburn v. Sousa, 338 Mass. 547. There (at p. 552) it was pointed out "that absolute statutory power to prohibit piggeries . . . exists most clearly under" G. L. c. 111, Section 143 (as amended through St. 1956, c. 275, Section 1). [Note 2] This section and its predecessors have been construed as authorizing complete prohibition of "the employment of keeping swine." See Commonwealth v.

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Young, 135 Mass. 526, 529; Cochis v. Board of Health of Canton, 332 Mass. 721, 722-724. As was said in Board of Health of Wareham v. Marine By-Prod. Co. 329 Mass. 174, 177, under Section 143, "it is not necessary that the [prohibited] trade shall actually be a nuisance or offensive. It is enough if it `may be attended by noisome . . . odors' . . .. It does not require much imagination to assume that any business of manufacturing fish meal and fish oil `may be attended by noisome . . . odors.'" This last observation certainly applies even more strongly to the noisome odors likely to be produced by an assemblage of 2,500 to 4,000 swine, as in the present case. See Waltham v. Mignosa, 327 Mass. 250, 252. It is not at all strange that the existence of a large piggery in this growing community has led its board of health to exercise its prohibitory powers.

Action by the board under Section 143 was necessarily in accordance with the requirements of related sections. The order of prohibition was duly served as provided in G. L. c. 111, Section 146. Thereafter the lessees' and Garelick's appeal under Section 147 (as amended through St. 1948, c. 480, Section 2) [Note 3] failed by reason of the last sentence of Section 148. The lessees' and Garelick's principal contention is that the remedy under to Section 147 and the related Sections 148-150 is inadequate,4 in that, in order to prosecute his appeal under Section 147, the piggery proprietor, under Section 148, must comply with the order pending

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the jury trial unless "specially authorized by the board" to do otherwise. Even though Section 150 gives "damages and costs against the town" to a petitioner not specially authorized to continue the prohibited employment pending the trial, the lessees and Garelick contend that Sections 147-150 deny them their constitutional rights.

So far as this record shows, the lessees and Garelick have simply failed to prosecute completely and successfully their statutory remedy. The agreed facts do not show that they ever applied to the board under Section 148 for special authorization to continue the piggery pending the appeal. They thus did not exhaust a possible administrative remedy for staying the operation of the board's order pending its court review. In view of the provision of Section 150 allowing damages in the event that the board's order is annulled, a board obviously has a strong inducement to be liberal in granting special authorizations. The lessees and Garelick also have neither contended nor shown that a board decision denying special authorization could not have been reviewed by certiorari under G. L. c. 249, Section 4 (as amended through St. 1953, c. 586, Section 1), or otherwise (see DiMaggio v. Mystic Bldg. Wrecking Co. Inc. 340 Mass. 686, 691) or that, in connection with such a certiorari proceeding, a judicial stay of enforcement of the order would not be granted in appropriate cases of hardship. They are not now in a position to assert that Section 148 deprives them of an adequate remedy, and of their constitutional rights, where they have not used all the statutory provisions available for their protection. In any event, they would have been entitled to damages in accordance with Section 150 for the deprivation by the order of use of the piggery for the period of the appeal if the order had been annulled by the jury verdict. We, of course, need not now define precisely the term "damages" used in Section 150. We think, however, that, when the occasion arises, the word must be interpreted broadly enough to satisfy at least minimal constitutional requirements of just compensation for any such wrongful deprivation.

In the light of these considerations, Section 143 and Sections 146-150 are not invalid on their face. See Flynn v. Board of Registration

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in Optometry, 320 Mass. 29, 33-34. As has been indicated above, the conduct of an inherently noxious and offensive trade like this large scale piggery can be prohibited as an enterprise normally causing serious injury and offense to the owners of neighboring properties. Sections 147-150, however, fall short of absolute prohibition, in that they provide persons claiming to be injured by a specific prohibition or by a particular application of a general regulation or prohibition with a judicial review of an order issued under Section 143 upon condition of their compliance with the order pending the review. The safeguards already mentioned, allowing a discretionary stay of the prohibition or damages, at least satisfy, and may exceed, what is constitutionally required. See DiMaggio v. Mystic Bldg. Wrecking Co. Inc. 340 Mass. 686, 691-692. The condition that there must be compliance with the order pending review is valid. Because the lessees and Garelick did not comply with this valid condition and completely prosecute their statutory remedy in accordance with its terms, they are now precluded from showing that the prohibitory order was invalid in its application to them. See Swansea v. Pivo, 265 Mass. 520, 523; Revere v. Blaustein, 320 Mass. 81, 83.

The lessees and Garelick somewhat vaguely argue that the interpretation of Section 143 and Sections 146-150 should be modified by reason of the enactment of G. L. c. 111, Section 125A, inserted by St. 1958, c. 469. This section provides for review in the District Court of an order, under Section 122, Section 123, or Section 125, abating a nuisance, and contains a provision that "the operation of said order shall be suspended, pending the order of the court." Section 125A by its own terms applies only to orders under the sections therein mentioned and not to orders under Section 143. It is irrelevant in this case.

The board's order to cease the operation of the piggery and to remove the pigs has become final. The town is entitled to specific enforcement of it under G. L. c. 111, Section 187. The final decree is affirmed. The town is to have costs of this appeal.

So ordered.