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06/28/77 CONSOLIDATED CIGAR CORPORATION v.

June 28, 1977

CONSOLIDATED CIGAR CORPORATION
v.
DEPARTMENT OF PUBLIC HEALTH



Hampden. Civil action commenced in the Superior Court on April 9, 1975. The case was heard by Moriarty, J., on motions for summary judgment. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Public Health. Regulation. Constitutional Law, Equal protection of laws, Police power. Due Process of Law. Practice, Civil, Summary judgment, Declaratory relief. Migrant Workers.

The opinion of the court was delivered by: Abrams

Regulations promulgated by the Department of Public Health pursuant to G. L. c. 111, § 128H, with respect to visitation rights of migrant workers, were applicable to young persons employed by a tobacco company during school vacations and housed in facilities furnished by the employer. [847-850]

Neither the provisions of G. L. c. 111, § 128H, nor certain regulations concerning visitation rights of migrant farm workers promulgated pursuant to the statute are unconstitutional. [850-854]

Regulations promulgated by the Department of Public Health pursuant to G. L. c. 111, § 128H, were within the scope of the department's delegated authority. [854-858]

The plaintiff, Consolidated Cigar Corporation (Consolidated), sought a judgment declaring that G. L. c. 111, § 128H, *fn1 and the Regulations on Rights of Visitation for Migrant Workers (regulations) promulgated by the Department of Public Health (department) pursuant to the statutory mandate are unconstitutional on their face and as applied to Consolidated. It further sought a declaration that the statute and regulations are inapplicable to its tobacco harvesting facilities. The department filed a counterclaim for injunctive relief. Both parties moved for summary judgment. A Judge of the Superior Court declared the rights of the parties in his order for judgment. G. L. c. 231A, § 1. See Attorney Gen. v. Kenco Optics, Inc., 369 Mass. 412, 418 (1976). The judgment enjoined Consolidated from further violations of the regulations. We granted an application for direct appellate review.

As a procedural matter, we think resort to declaratory relief particularly appropriate here. See G. L. c. 231A, § 2. *fn2 To require the statute and the regulations to be challenged only in an enforcement proceeding would delay the vindication of rights belonging to the public and to a group classified by the Legislature as requiring special protection. Cf. Norcisa v. Selectmen of Provincetown, 368 Mass. 161 (1975).

We also think it appropriate to note that the motions for summary judgment and the accompanying affidavits were well prepared, thus enabling the trial Judge to determine accurately that there was no genuine issue of material fact to be tried. The effective and proper use of Mass. R. Civ. P. 56, 365 Mass. 824 (1974), in this case has eliminated an unnecessary trial, and has resulted in a more prompt Disposition of this matter than would otherwise have been obtained.

The pertinent facts, accurately and artfully recounted in the Superior Court Judge's order for judgment, are as follows.

Consolidated plants, harvests, and processes shade-grown tobacco in the Connecticut River Valley area, including parts of Massachusetts. Consolidated employs a number of young persons (ages fourteen to seventeen) during their school vacations under a special summer work program. These young persons are housed in facilities furnished by Consolidated and supervised by teachers or principals recruited by Consolidated from the home areas of the young workers. Consolidated obtains signed employment contracts from the parents or guardians of these young people.

The contracts drafted by Consolidated purport to regulate the non-working activities of its young workers, as well as access by visitors to the housing facilities. Guests must obtain administrative approval from Consolidated in order to visit the young employees. Exceptions are made only for public agencies rendering emergency aid, medical personnel employed by Consolidated, and teachers sent by the Migrant Resource Center of the Massachusetts Department of Education.

Consolidated invoked this contractual provision in 1974 and 1975 to deny access to certain persons seeking to enter its young person facilities. Among persons barred from entry were a paralegal employee of Neighborhood Legal Services, Inc., of Hartford, Connecticut, and a chaplain affiliated with the Springfield Council of Churches and some of their supporting ...


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