Commonwealth v. Brooks

109 Mass. 355

Opinion

Chapman, C. J.

The complaint is for the violation of a city ordinance, passed June 2,1871, to amend an ordinance in relation to Faneuil Hall Market. By § 4 of the ordinance in relation to Faneuil Hall Market,

Footnotes

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† this market includes specified portions of the building and seveial adjoining streets. The complaint alleges that the defendant on June 16, 1871, at Boston, “ with force and arms, was then and there the person having the care of a certain market wagon, having perishable produce therein, to wit, onions, and did suffer the said wagon to remain within the limits of Faneuil Hall Market, to wit, in that portion of South Market Street lying within the said limits, more than twenty minutes, between the hours of eleven o’clock in the forenoon and four o’clock in the afternoon of said day, he not being permitted so to do by the said superintendent of said market, or by Amos Dodge, the deputy superintendent of said market.”

The first objection urged against the complaint is, that the ordinance was not in force at the date of the alleged offence. It was approved by the mayor on June 2, 1871. The act complained of is alleged to have been committed on June 16,1871. The city charter provides that such ordinances “ shall take effect and be in force from and after the time therein respectively limited.” St. 1854, c. 448, § 35. And the objection rests on the ground that this ordinance does not in terms prescribe the time when it shall take effect.

But its language implies that it is in force immediately upon its passage; and unless some other time is limited, this is the ordinary construction of statutes. The Brig Ann, 1 Gallison, 62. Matthews v. Zane, 7 Wheat. 164. Arnold v. United States, 9 Cranch, 104. Matter of Welman, 20 Verm. 653. We do not think the language of the city charter requires a different construction to be given to city ordinances. This construction is not inconsistent with the rule stated in the Opinion of the Justices, 22 Pick. 571, 573, “ that every clause and word of a statute shall be presumed to have been intended to have some force and ef feet; ” for if, by the fair construction of the ordinance, it takes effect immediately, the clause of the city charter cited above is complied with. The provisions of the Rev°. Sts. c. 2, §§ 4, 5, and Gen. Sts. c. 3, § 6, which provide that a statute, “ which does not expressly prescribe the time when it shall go into operation, shall take effect on the thirtieth day next after the day on which it shall have been approved,” apply to legislative acts, and not to city ordinances. The city has power to pass an ordinance which shall take effect immediately, and the question when a particular ordinance takes effect is to be determined by its language.

It is contended that the ordinance in question does not conform to the St. of 1869, c. 301, § 1.* But that is a statute to regulate passing in the streets, while this ordinance relates to markets ; and though Faneuil Hall Market includes a part of South Market Street, the ordinance as to the market is in force there, and this prosecution is under it.

It is further contended that the ordinance is unreasonable, unequal and unconstitutional, and unduly restrains trade.

The restrictions created by it are in force only between eleven o’clock in the morning and four o’clock in the afternoon, leaving persons at liberty to occupy a street stand, for the sale of fresh provisions and perishable produce, at all other times of the day, when the market is open. Such stands are an interruption to travel in the street; and the court cannot judicially determine what portion of the time the travel ought to be free from such interruptions, nor how the business of the market should be regulated, nor upon what occasions or by what officers the market-men should be relieved from the restriction. The making of proper regulations on such a subject, so as best to accommodate the public, requires special knowledge and experience as to the business of the particular locality, and what might seem unreasonable to a stranger may in fact be what best promotes the interests of the public. We see no ground for holding that the ordinance is not reasonable and valid, or that it is unequal or unduly restrains trade.

Exceptions overruled.

“ The limits of Faneuil Hall Market shall include the lower floor, porches and cellars of the building called Faneuil Hall Market, the basement story and cellars under Faneuil Hall, and the following described portions of the adjacent streets, namely, so much of Commercial Street as lies westerly of the side walk on the easterly side thereof, and between the outer lines of the side walks on the northerly side of North Market Street and the southerly side of South Market Street extended eastwardly; all of North and South Market Streets, except the northerly sidewalk of the former and the southerly sidewalk of the latter; all that portion of Merchants’ Row included between the outer lines of the aforesaid northerly and southerly sidewalks extended westwardly across said Merchants’ Row; and all of Faneuil Hall Square, except Ghe sidewalk on the northerly, southerly and westerly sides thereof.”

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“The mayor and aldermen of any city, and the selectmen of any town, may make such rules and regulations in relation to the passage of carriages, wagons, carts, trucks, sleds, sleighs or other vehicles, through the streets or public ways of the city, as they shall deem necessary for the safety or convenience of those who travel on said streets or ways, on foot or in vehicles with penalties for violations thereof, not exceeding twenty dollars for one of-fence.”