HomeMy WebLinkAboutMOYSENKO, ELIZABETH ARNOLD H. SALISBURY, TOWN COUNSEL
TOWN OF NORTH ANDOVER, MASSACHUSETTS
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April 16, 1964 to Dz Fz ZZ �Z
John J. Lyons, Town Clerk
Town Office Building
North Andover, Massachusetts
Dear Sir:
I enclose herewith, for your records, a photostatic copy of
the decision of the Supreme Judicial Court in the matter of Moysenko
v the Town of North Andover and the Board of Health.
Very trul
A
Town Couns,�I
AHS/PML
1
s-13,093
ZLIZABSTH NOT8=10 k another yj, 80AID OF HSALTH
OF NORTH ANDOM k another.
RaASDON, J. On February 24, 19601 the board of health of
North Andover (the board) adopted after a public hearing, to be
effective on January 1, 1961, substantially the same rsgulational�
relative to the keeping of piss which we considered in jgg"& v.
board Qf HeaAtbo_t W1 011, 332 Mass. 7211 and in lgard of Health
of hanklin v. &U, 342 Mass. 421, On January 27, 1961, the pets-
tloners, Slisaboth and her son, Constantino Moysonko, were served
With an order of prohibition under 0. L. c . 111, 1 146, directing
thew to coass operating a piggery upon certain designated praises
In the tow (the premises) . The Moysenkos Seasonably filed this
Petition under 0. L. a. 111, 147, to have a fury annul the board 's
"9ection 1. No person, firm or corporation shall keep a
piggery within the Town of North Andover. The keeping of four or
more pigs at any one time shall constitute a piggery.
"Beation 2. No Person shall keep a pig within 25 feet of an
dwelling or tenement owned or occupied by any person other than Its
OWN family. No person shall keep two or more pigs within SO feet
Of OR dwelling or tonement awned or occupied by any person other
than his own family.
"8eetion 3. Anyperson keeping one or more pigs, upon re•eipt
Of notice in writing om the Board of Health that such keeping of
pigs has been found to be a nuisance, shall remove the pigs from
bis promisee within reasonable time specified in the no ice."
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order and assess dames. a. L. c. 111, H 1491 150.
The jury could have found the following facts. Since 1932
Constantino has kept from time to time between fifty and one hundred
hogs on the premises. On January 27, 1961 , they numbered seventy-
four and were being fed in accordance with legal standards. The
promises, owned by alisabeth, were a farm of about fifty-two acres
situated in a district coned for agriculture and surrounded by
other farms. Constantino paid a rental for the use of the presises.
The place where the hogs were kept was approximately 1,200 feet
away from the public road and not near any houses.
Persons living in the neighborhood ware never bothered by any
odors emanating from the piggery and never had occasion to know
of any impropriety in its maintenance. No complaints about it were
over made to a public official. The board never investigated nor
made any effort to investigate conditions at the piggery and knew
nothing about them. When State health officers visited, they
always found the premises fit and W 13factory for the operation
Of a piggery. The sole reason for the issuance of the regulations
and order of prohibition was because the board wanted no pigs in
the town.
At the close of the evidence the petitioners requested that
,the jury be given the following instruction : "If you find that
the members of the [b]oard . . . issued this order against the
petitioners without investigating the . . . promises or without
having any knowledge of the method of operation of the petitioners '
piggery, you are warranted in finding the issuance of said order
2
order and assess dasuges. 0, L. c . 111, I; 1499 150.
The Jury could have found the following facts. Since 1932
Constantino has kept from time to time between fifty and one hundred
hogs on the premises. On January 27, 1961, they numbered seventy-
four and were being fed in accordance with legal standards . The
premises , owned by Elisabeth, were a farms of about fifty-two acres
situated in a district Boned for agriculture and surrounded by
other farms . Constantino paid a rental for *he use of the premises.
The place where the hogs were kept was approximately 1,200 feet
away from the public road and not near any houses.
Persons living in the neighborhood were never bothered by any
odors emanating from the piggery and never had occasion to know
of any impropriety in its maintenance. No complaints about it were
ever made to a public official. The board never investigated nor
made any effort to investigate conditions at the piggery and knew
nothing about them. When State health officers visited, they
always found the premise■ fit and satisfactory for the operation
of a piggery. The sole reason for the issuance of the regulations
and order of prohibition was because the board wanted no pigs in
the town.
At the close of the evidence the petitioners requested that
the jury be given the following instruction : "If you find that
the members of the [b]oard . . . issued this order against the
petitioners without investigating the . . . premises or without
having any knowledge of the method of operation of the petitioners '
piggery, you are warranted in finding the issuance of said order
4
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urw er these circumstances was urrvoonable and arbitrary as to the
petitioners . . , , and you have a right to annul or alter the said
order. " The ,judge refused to give the instruction and an exception
Mae ► aKcr, . Tne ,jury 3rfirmed the order of the board. The petitioners
are here on a s'ibstitu- e bill of ex^epti)ns.. The sole issue is
whether the refusal to grant the above instruction was proper.
The order of prohibition tyite terms was based upon 1 of the boarr
regulation34 "No person, firm or corporation shall keep a piggery
within the Town The keeping of f^.a mere k' ys tit any one
time shall constitute a piggery " The a.rab: Lng st.tt,lt:e is G� L. c. 111,
4 143 "No trade or employment whish ?ALY resu_t is a nuisance or be
harmful to the inhabitants, injurious to their esLaces, dangerous to
the public hearth, or .Y be attended by noisome and injurious odors
shall be estAbl Lshed in a _ town except _rL sorb a lova tion as
may be Ag91gred by the bna-d of health therer,f and such board
of hea:.th may prohibit the exercise thereof w.th:.n the 1 . ,,nits of
the . town. , . " ( rmFhaSis 311, . 1 - ed ,
We ar- of opinion that. the boaca had no duty to acquire any
knowledge as to the operation of the Moysenko piggery before
adopting the regulations. We have already held valid regulations
differing in no material respect. C chis v. Board of Health of
Cantons 332 Mass. 721, 724. Board of Health of Franklin v. &U.S,
342 Mass . 421, 422. "[Ajbsolute statutory power to prohibit
piggeries . . . exists most clearly under" G. L. C . 111, § 143.
B a�rdof Health of Woburn v. Sousa, 338 Mass. 5479 552. Board of
"The verdict may alter, affirm or annul the order, and shall be
returned to the court for acceptance; and if accepted, shall have the
authority and effect of a valid order of the board, and may also be
enforced by the court in equity. " , G. L. c. 111, § 149.
4
stealth of Franklin v . HM, sera, 423.
The board under § 143 need not give individual attention to
each piggery before adopting .& regulation. "[A]n order of the
board cf hearth , under the (Ian. Sts . c. 26, § 52 [a predecessor of
1 1431 , is not in the nature of an adjudication of a particular case,
but of a general regulation of the trade or employment mentioned
therein." T unton v. Taylor, 116 Mass. 254, 261. Cqc,hJs Y. bAa
of_ Health of C&nton, s Ura, 724-725 . The board "is empowered by
§ 143 to prohibit the exercise of the trade or employment as a
whole whenever by any of the methods employed it has become or may
become a nuisance or otherwise offensive as set forth in the statute.•
$p_ard-of Hsalth of Wareham Y. Mgrine By-Products Co. 329 Mass. 174,
178. In regulating an occupation a board may not act in "an unreason-
able, arbitrary , whimsical, or capricious manner. " Bute Y. JzJLJJ
Bridaewater, 330 Mass. 33 , 38. But under § 143 an entire occupation
may be prohibited if "it is conceivable that there might be circum-
stances where . . . [the exercise of that occupation] might become
. [a nuisance] . " W la tham v. Minnow, 327 Mass . 250, 252 .
Clearly "the trade or employment need not in fact be a nuisance or
attended by noisome and injurious odors before the power of pro-
hibition arises." IJ. Me think it within the realm of common
knowledge that some piggeries may be attended by noisome and inju-
rious odors . See Pendolev v. Ferreira, 345 Mass. , .* See
also Board of Hsalth of Wareham v. Marine Bir-Products Co. , supra, 177.
ti Masa . Adv . Sh. (1963) 41, 44.
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Therefore, no investigation i• necessary to establish such a
possibility, and a board would be reasonable in not •aktipg ons.�'
The board properly adopted the regulations without knouledse
of conditions at the petitioners ' piggery. without Question 4 1
of the regulations authorised the issuance of the order of prom
hibition.
Stto eoti�,ov�erru�led.
4/The bill of "captions does not state that no investiga-
tion preceded adoption of the regulations but only that there woo
no investigation of the Noysenko piggery.
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