Commonwealth v. Brooks

99 Mass. 434

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1868
• Status: Published

Opinion

Gray, J.

It is very clear that the defendant was not proved to have violated the city ordinance on which he was prosecuted. No person transgresses the ordinance, who does not voluntarily suffer his vehicle to stop in the street for more than twenty minutes. The defendant indeed drove into South Market Street more than twenty minutes before four o’clock, and intended to remain in that street until four o’clock. But he had the right to travel in the street, if he did not voluntarily suffer his vehicle to stop in it for the prohibited period. If he had arrived on his stand more than twenty minutes before four o’clock and voluntarily remained there with his wagon until that hour, or if he had voluntarily stopped his wagon for more than twenty minutes at any other place in the street, it would have been a violation of the ordinance. So perhaps, if he had stopped, for more than twenty minutes in all, in two places near each other, in the execution of one purpose. But it is unnecessary in this case to consider under what circumstances repeated intermissions of travel, or time spent in driving about the street without inten tian of moving onward towards a «articular destination, might be treated as going to make up one stopping, within the meaning of the ordinance; for it appears that the defendant, while driving his wagon through the street towards his stand, was delayed by the crowding of other vehicles which he could not control, fcr five or six minutes, and then drove on and occupied his stand. He did not voluntarily stop at all before arriving at his stand; he did not stop on his stand but fifteen minutes before four o’clock; and after four o’clock, being a marketman, engaged in bringing vegetables into the city and selling them from his wagon at a stand occupied by him within the established limits of the market, though in a public street, he is admitted to have had a right, by virtue of the exception in the ordinance, and of the St. of 1859, c. 211,

* to be and remain upon his stand with his wagon. New trial ordered.

The material part of this statute is as follows : § 1. “ The city of Boston shall make no by-law, ordinance or regulation excluding from the occupation of street stands within the limits of Faneuil Hall Market in said city, as the same are or may be defined in the city ordinances, for the sale of fresh provisions and perishable produce, any persons taking such stand for the sole purpose of selling such fresh provisions or perishable produce, provided the same are the product of the farm of the person offering them for sale, or of some farm within ten miles from the residence of such person.” § 2. “ The said city shall make no by-law, ordinance or regulation, prohibiting the occupation of stands within said limits and the sale of fresh provisions and perishable produce by the persons hereinbefore mentioned, between the hours of four o’clock in the afternoon and the time of closing said market at night, or before ten o’clock in the forenoon, except on Sundays and holidays.” By the St. of 1860, e. 152, this last named time was extended to eleven o’clock in the forenoon.