The city of Malden brought this bill in equity on March 2, 1944, to enforce a regulation of the board of health passed on February 8,- 1944, which in effect provided that no person, firm or corporation other than the city or its contractors and agents should “carry, convey, or transport” through the streets of the city any kitchen swill or garbage. The bill was amended by adding allegations that the defendant on June 15, 1944, had entered into a contract with the city to purchase until January 1, 1945, garbage from the city at a certain hopper owned by the city; that the street and water commission of the city had passed a regulation on February 10, 1944, forbidding any person, except employees of the' street and water department and persons authorized by the commission, to “remove or transport garbage” through the streets of the city “without first obtaining a permit from the board of health and the street and water commission”; that the board and the commission in June, 1944, had granted permits to the defendant to transport garbage from this hopper through the streets of the city en route to Peabody where the defendant had a piggery; and that the defendant in violation of the regulation of the commission was removing and transporting garbage from places in the city other than from the hopper. The defendant admitted that he was transporting' garbage as alleged but denied the validity of the regulations of the board and the commission, and filed a counterclaim for damages. The defendant appealed from a final decree entered on November 14, 1944, enjoining him from collecting, removing or transporting garbage through the streets of the city, except that, until December 31, 1944, he might transport garbage from the city hopper en route to Peabody. This decree also dismissed the counterclaim.
At the beginning of the trial the judge, in an endeavor to ascertain the facts that the parties could agree upon, discussed the suit at considerable length with counsel. Counsel for the defendant at first admitted the validity of the regulation of the board of health, but later in this discussion he withdrew from this position and informed the judge that he contended that the board of health had no authority to *731pass this regulation and that the regulation was unreasonable, and in response to an inquiry by the judge he made an offer of proof to support his contention that the regulation was unreasonable. Counsel, we think, could change his position during this preliminary discussion. If the consent of the judge was required, that was impliedly given when counsel was given an opportunity to make an offer of proof. The trial thereafter apparently proceeded on the basis that one of the issues was the validity of the regulation. We see nothing in these circumstances that estops the defendant from challenging the validity of the regulation of the board. Commonwealth v. Retkovits, 222 Mass. 245, 252-253. Levenson v. Ruble, 307 Mass. 562, 565. McGeorge v. Grand Realty Trust, Inc. 316 Mass. 373, 377.
Even if we assume in favor of the city that the permit granted by the board in June, 1944, merely authorized the defendant to transport garbage from the city hopper and that it expired on January 1, 1945, yet the bill cannot be maintained to enforce this regulation. This is settled by Malden v. Flynn, ante, 276. The remedies available to the city on both the criminal and civil sides of the court are there pointed out. The collection of garbage from premises in Malden could not be lawfully or effectually carried out unless one had a permit under G. L. (Ter. Ed.) c. 111, § 31A, as inserted by St. 1937, c. 282, and unless the work was done in accordance with the rules and regulations of the board of health made in accordance with § 31B, inserted by said c. 282. It was accordingly héld in Malden v. Flynn, supra, that control over the collection and transportation of garbage was conferred upon the board of health by said §§ 31A and 31B. This construction of § 31A has been confirmed by the enactment, since that decision, of St. 1945, c. 423, which makes- a distinction between the transportation of garbage collected in a city and the transportation of garbage through a city other than the one in which it was collected.
We need not decide whether the commission had authority to pass the regulation of February 10, 1944, notwithstanding the specific statutory power conferred upon boards *732of health over the transportation of garbage, see now G. L. (Ter. Ed.) c. 111, §§ 31A, 31B, St. 1945, c. 423, if that regulation stood alone. See G. L. (Ter. Ed.) c. 40, §§ 4, 21 (1). Compare North Reading v. Brinkwater, 309 Mass. 200. But a person having no contract with the city cannot obtain a permit from the commission “without first obtaining a permit from the board of health,” which he cannot obtain on account of the regulation of the board that purports to bar it from granting á permit to such a person to "carry, convey, or transport” garbage through the streets of the city. The fact is that the commission can never exercise its discretion and grant a permit to such a person so long as the board pf health censiders itself beund by its regulatien te deny permits te all such persens. The reguIatipn of the commission is so inextricably connected with this invalid, regulation of the board that the former is tainted with the same vice as the latter when applied to a case like the present and cannot in such instances be enforced.
The defendant has no right to obtain damages'from the city. It appears that the parties had entered into a stipulation by which the defendant was not to be interfered with during the pendency of the present suit. It is difficult to see how he has sustained any damage; but if he did, the gist of his complaint is the action of the board in refusing to consider his application for a permit. It does not however follow that, if the application was considered on its merits by the board, a permit would have been granted. Malden v. Flynn, ante, 276, 279. In any event, the city is not liable for the actions of the board whose members act as public officers and not as agents of the city. Harrington v. Worcester, 186 Mass. 594. Attorney General v. Stratton, 194 Mass. 51. Breault v. Auburn, 303 Mass. 424. Gibney v. Mayor of Fall River, 306 Mass. 561, 565.
The final decree is reversed and a decree is to be entered dismissing the bill and the counterclaim.
So ordered.