"Any

day of May, 1860, and such settlement was clearly defeated and lost by the retroactive provision of R. L., c. 80, § 6, settlement which was not fully acquired subsequent to the first day of May in the year eighteen hundred and sixty is hereby defeated and lost, unless such settlement prevented a subsequent acquisition of settlement in the same place," since after 1851 he did nothing which would entitle him to a settlement either in Fairhaven or elsewhere, and does not come, therefore, within the exception in the above-entitled section. The fact that the father's settlement did come within the exception and was not lost seems to me to be immaterial in respect to the settlement of the son.

STATE BOARD OF
OF HEALTH

NUISANCE - JURISDICTION
ABATEMENT OF NUISANCE PENDING COMPLAINT TO
LOCAL BOARD OF HEALTH AND BILL OF COMPLAINT IN
SUPERIOR COURT.

The State Board of Health may, under the provisions of R. L., c. 75, § 109, enter-
tain an application or complaint alleging that a corporation engaged in the
manufacture of cement is maintaining a nuisance upon its premises, and
may investigate the conditions attending such manufacture upon such prem-
ises, notwithstanding that such corporation was authorized by the local
authorities to engage in and carry on the business of manufacturing cement
at such place, and notwithstanding that a bill of complaint of the same
tenor was filed by the petitioner and is now pending before the Superior
Court, and that a like complaint has been presented to the local board of
health, upon which such board has not yet acted.

State Board

1907

The State Board of Health requests my opinion as to its To the jurisdiction in the matter of a complaint directed against the of Health. Russia Cement Company of Gloucester, and a petition for the March 16. abatement of a nuisance alleged to exist on the premises of said company. The Russia Cement Company moved to dismiss the complaint for the reason that the State Board of Health lacked jurisdiction.

It appears that the business of the Russia Cement Company was being conducted upon the same premises to which the corporation had been assigned by the local board of health in 1881, and in buildings occupied and used by the written permission of

the mayor and board of aldermen; that at the time of filing the petition the said business was being conducted on said premises under the regulations of and in the mode prescribed by the local board of health, and with its approval; that on July 16, 1906, the same petitioner made a like complaint to the local board, which complaint is now held under advisement by that board; and that on Oct. 11, 1906, the same petitioner filed a bill of complaint of the same tenor and effect in the Essex Superior Court, praying for an injunction and the prohibition of said business, and the same is now pending in said court.

The cement company objects to the jurisdiction of the State Board of Health:

(1) Because of the proceeding in and before the local board of health.

(2) By reason of the proceedings in and before the Superior Court.

The jurisdiction of the State Board of Health is under R. L., c. 75, 109, which reads as follows:

If any buildings or premises are so occupied or used, the state board of health shall, upon application, appoint a time and place for hearing the parties and, after due notice therefor to the party against whom the application is made and a hearing, may, if in its judgment the public health, comfort or convenience so require, order any person to desist from further carrying on said trades or occupations in such building or premises; and whoever thereinafter continues so to occupy or use such buildings or premises shall forfeit not more than two hundred dollars for every month of such occupancy and use, and in like proportion for a shorter time.

The question is, therefore, whether the fact that a license has been issued to the Russia Cement Company by the local authorities, and the business of said company is conducted with the approval and subject to the regulation of the local board of health, and that a petition has been filed in the Superior Court to enjoin such company from maintaining a nuisance, limits the jurisdiction of the State Board of Health in the premises.

The power of the State Board of Health under R. L., c. 75, § 109, was first established in St. 1871, c. 167, which authorized

such Board to forbid the exercise of an offensive trade in any municipality of more than 4,000 inhabitants. See Sawyer v. State Board of Health, 125 Mass. 182, 192, where the court say:

It simply gives to the State Board of Health jurisdiction, whether concurrent with the town boards or exclusive it is not material to this case to inquire, in cities and large towns, to do what may be done in every town of the Commonwealth by the local board of health.

In Cambridge v. Trelegan, 181 Mass. 565, the court state, in speaking of the authority of the local board to forbid the carrying on of a slaughter house as dangerous to the public health after license by the proper authority:

From its origin the policy of requiring the license mentioned has been shown not to be exclusive of the exercise of their usual powers by boards of health by the express grant of power to the State Board of Health to prohibit carrying on the business of slaughtering in a building or premises occupied for that purpose. St. 1871, c. 167, § 2; St. 1874, c. 308; Pub. Sts., c. 80, § 93; R. L., c. 75, § 109. The court is of opinion that this grant of power is not exclusive, and that it would be unwarranted and anomalous to hold the license good against the local board acting under Pub. Sts., c. 80, § 84, R. L., c. 75, § 91, when it would be no answer to the State Board acting under what is now another section of the same chapter of the Revised Laws. See Sawyer v. State Board of Health, 125 Mass. 182, 191, 192; Stone v. Heath, 179 Mass. 385.

In these cases it appears clear that the jurisdiction of the State Board of Health is at least concurrent with that of local boards of health in cities and towns of more than 5,000 inhabitants; and the fact that the local board of health refuses to act in the premises does not in any way affect the right of the State Board of Health to proceed. Indeed, it may well have been that the Legislature intended that the State Board under just such circumstances should have the power to intervene, and prohibit the carrying on of business injurious to the public health.

I am therefore of opinion that the fact that the question concerning the Russia Cement Company had been raised before the local board of health, and that the method of business of such

company had been approved by such board, does not affect the present proceedings brought before the State Board of Health.

In respect to the proceedings pending before the Superior Court, the case of Stone v. Heath, 179 Mass. 385, seems to be conclusive. In that case the court say, in discussing action by a local board of health (p. 389):

And if it be true, as alleged, that action was taken with a view to affect proceedings in the suit pending in the Superior Court between the plaintiffs and the water company, that also furnishes no ground for interference with the board of health. It often happens that the proceedings in one tribunal are affected or may be affected by action taken by another tribunal. Such action may even be taken with that purpose in view, so long as it is within the jurisdiction of the tribunal that acts, and may also be at the instance of one of the parties to the proceedings in the other tribunal.

I am of opinion, therefore, that the State Board of Health may proceed with the investigation of the question raised by the petition in this case, if it deems it proper to do so.

To the Committee on the Judiciary. 1907

April 3.

CONSTITUTIONAL LAW-ACCEPTANCE OF STATUTE-APPROVAL
BY MAJORITY OF QUALIFIED VOTERS OF COMMONWEALTH.
So much of Senate Bill No. 9, entitled "An Act to fix the punishment for the crime
of murder," as purports to provide that such act shall take effect when ap-
proved by a majority of the voters of the Commonwealth, is unconstitutional.

I have your letter in which you say that the joint judiciary committee ask my opinion as to the constitutionality of section 5 of Senate Bill No. 9. The title of that bill is, "An Act to fix the punishment for the crime of murder." Said section 5 reads as follows:

This act shall take effect when approved by a majority of the qualified voters of the Commonwealth at the next annual state election.

In the Opinion of the Justices, 160 Mass. 586, our Supreme Judicial Court has said that there is nothing in our Constitution which would lead one to think that the people desired that any

law should ever be submitted to them for approval or rejection; that by the Constitution the Senate and the House of Representatives have been made the legislative department of the government.

Apparently it was thought that the persons selected for the executive, legislative and judicial offices in the manner prescribed in the Constitution would be men of good character and intelligence, of some experience in affairs and of some independence of judgment, and would have a better opportunity of obtaining information, taking part in discussion and carefully considering conflicting opinions, than he people themselves; and the people therefore put the responsibility of carrying on the government upon their representatives.

The question under consideration was an act granting to women the right to vote in town and city elections. The act provided that it should take effect throughout the Commonwealth on its acceptance by a majority vote of the voters of the whole Commonwealth.

The question was further considered in the case of Brodbine v. Revere, 182 Mass. 600; and the court, speaking by Chief Justice Knowlton, said:

It is well established in this Commonwealth and elsewhere that the Legislature cannot delegate the general power to make laws, conferred upon it by a Constitution like that of Massachusetts. This doctrine is held by the courts almost universally.

These decisions seem conclusive, and I am therefore of opinion that it would be unconstitutional to provide that said act shall take effect when approved by a majority of the voters of the Commonwealth.