Kent v. Board of Health

307 N.E.2d 850, 2 Mass. App. Ct. 803

Opinion

This is a bill under G. L. c. 231A seeking a declaration that §§ 5 and 6 of the rules and regulations of the board of health of the town of Milton concerning the municipal disposal area are invalid as applied to the plaintiffs. The defendants’ demurrer to the bill was sustained. The only issue for our determination is whether the demurrer was properly sustained on either of the assigned grounds that “. . . [1 ]. The . . . [bill] fails to state concisely and with substantial certainty the facts necessary to entitle the . . . [plaintiffs] to any relief against the . . . [defendants], [2], The . . . [bill] does not concisely set out facts showing a case presenting a significant controversy.” While the bill does contain a number of unnecessary averments of fact it clearly sets out that a controversy exists as to the validity of the regulations and as to the manner in which those regulations have been, and in the future should be, enforced against the plaintiffs. See South Shore Natl. Bank v. Board of Bank Incorporation, 351 Mass. 363, 368 (1966); Pistorino & Co. Inc. v. Style Leather Co. Inc. 361 Mass. 464, 468 (1972). The fact that the controversy relates in part to the enforcement of criminal sanctions does not preclude the rendering of a declaratory decree. Mobil Oil Corp. v. Attorney Gen. 361 Mass. 401, 405 (1972). The interlocutory decree sustaining the demurrer and the final decree are reversed, and a new interlocutory decree is to be entered overruling the demurrer.

So ordered.