TOWN OF HOLDEN vs. HOLDEN SUBURBAN SUPPLY COMPANY, INC. & others.

WILLIAMS, J. This is a suit in equity by the town of Holden, which by amendment has been substituted as plaintiff for the town's board of health (Board of Health of Wareham v. Marine By-Products Co. 329 Mass. 174, 175), against Holden Suburban Supply Company, Inc., its president and principal stockholder, John F. Crystoff, and John Crystoff, an employee.

The corporate defendant owns a parcel of land in the town on which is located a four family house occupied by tenants. On or about September 17, 1959, it came to the attention of the town's board of health that a cesspool was being constructed and installed by the company on its premises without obtaining a permit from the board. It was additional to one already existing which was in good operating condition. The new cesspool was designed to take care of the overflow from the earlier cesspool with which it was to be connected by an eight inch pipe, four feet in length. No application had been made for a permit to construct this overflow cesspool.

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Provision for such permit is contained in the regulations of the board pertaining to the disposal of house sewage, adopted on June 1, 1954. [Note 1]

The town seeks orders by the court (1) that the new cesspool be uncovered so that it may be inspected by the board; (2) that the defendants obtain a permit for its installation; and (3) that the "disposal works" be installed "in accordance with the plans approved by the Board . . .." A demurrer of the defendants was overruled.

The judge found that the corporate defendant, through its president John F. Crystoff and by its employee John Crystoff, constructed and installed the additional cesspool in violation of Section 5 of the board of health regulations. He entered a final decree declaring (1) that the town had authority through the board of health to make reasonable health regulations pursuant to G. L. c. 111, Section 31, as amended; (2) that Section 5 of the regulations is valid; (3) that the corporation has violated Section 5; and (4) that the plaintiff have its costs. From this decree the defendants appealed.

It is provided by G. L. c. 111, Section 31, that "Boards of health may make reasonable health regulations" and by G. L. c. 111, Section 127, as appearing in St. 1937, c. 339, that "The board of health of a city or town may make and enforce regulations for the public health and safety relative to house

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drainage and connection with common sewers, if such a sewer abuts the estate to be drained. Whoever violates any such regulation shall forfeit not more than one hundred dollars."

The regulations adopted were for the preservation of the public health and relate to the disposal of one of the most dangerous forms of sewage. They belong "to that class of police regulations to which private rights are held subject . . . founded upon the right of the public to protect itself from nuisances, and to preserve the general health." Commonwealth v. Roberts, 155 Mass. 281, 282. See Cochis v. Board of Health of Canton, 332 Mass. 721, 723.

It is not contended by the defendants that the regulation of the methods for the disposal of house drainage is not a matter within the authority of the board of health but that the regulations in question are invalid, first, because purporting to be adopted under provisions of Section 31 of c. 111 of the General Laws, and second, because they fail to furnish an adequate standard by which the landowner may be guided in constructing his system for drainage disposal.

There is no merit in the first contention. It is plain that the matter of house drainage so affects the health of the community that the municipal authorities may be authorized by the Legislature under the police power to regulate it. To implement this power two statutes have been enacted: Section 31 providing in general for reasonable health regulations by local boards of health; and Section 127 authorizing regulations specifically relating to house drainage. In adopting its regulations the town's board of health was not required to state the source of its authority and the regulations were not rendered invalid by the reference to Section 31. They were authorized under either or both statutes. See also Section 122.

The second contention poses the question of the reasonableness of the standards applying to cesspools. Cesspools have been used from early times as a means of disposing house drainage. They are commonly built of field stone or other material through the interstices of which water in

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the drainage seeps and gradually is absorbed in the surrounding ground. The solid content of the drainage settles to the bottom of the cesspool and must periodically be removed. The proper functioning of a cesspool depends on the expert laying of the walls and the absorbent qualities of the surrounding soil.

The regulations as to cesspools are found in Section 7 under the classification "[a]ll sewage disposal works." It is provided that they be located at certain distances from dwellings, streams, streets, passageways, and adjoining lots; that they be of approved material and design and be equipped with safe and suitable removable covers. Overflow cesspools may be entirely covered with earth.

We perceive no unreasonable failure to make further specifications. The principles for guiding landowners are adequately stated with as much certainty as the nature of the subject matter reasonably permits. Building Commr. of Medford v. C. & H. Co. 319 Mass. 273, 281-282. The proper construction of cesspools depends peculiarly on conditions of soil and the nature of the material used in the walls. The landowner is warned by Section 5 that no cesspool shall be constructed or installed until a permit has first been obtained and that he shall have such construction inspected by the board of health or its agent before it is covered (Section 8). These are valid precautionary regulations to avoid future danger to health by improper methods of sewage disposal. Commonwealth v. E. E. Wilson Co. 241 Mass. 406, 410.

There is a matter of evidence to be considered. The defendant John F. Crystoff testified on direct examination that he owned sixteen buildings in Holden and previously had occasion to discuss with the board the applicability of these by-laws (regulations) to additions which he was making to existing sewer systems. He was asked by his counsel what those discussions were, counsel stating they were offered "simply as a construction put on these by-laws by the parties themselves." The question was excluded subject to the defendants' exception. There was no error.

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The judge said counsel might ask for the talk about the present construction but not in reference to other times and places. No basis was laid for the rule stated in the Powers's Case, 275 Mass. 515, 518, that "the long continued and uniform practice" of an agency charged with the administration of an ambiguous or doubtful statute is entitled to great weight. See Mullen v. Board of Sewer Commrs. of Milton, 280 Mass. 531, 536.

The final decree should be modified by adding provisions that the corporate defendant uncover or permit the board to uncover the overflow cesspool that it may be inspected and that the corporate defendant seek to obtain a permit for its installation. The decree should further provide that the bill be dismissed as to the individual defendants without costs. As so modified the decree is affirmed.

So ordered.