Commonwealth v. Ellis

33 N.E. 651, 158 Mass. 555, 1893 Mass. LEXIS 342

• Court: Massachusetts Supreme Judicial Court
• Decided: April 3, 1893
• Status: Published

Opinion

Holmes, J.

We must assume that the defendant was guilty of a breach of the Boston city ordinance against selling in the streets. Rev. Ord. 1892, c. 43, § 35. The only question brought before us by the exceptions is whether the ordinance is valid. It must be construed in a rational way. See Commonwealth v. Plaisted, 148 Mass. 375, 382. Of course it does not mean that two persons walking together on a highway cannot make a bargain in their private conversation, and execute it on the spot. The sales referred to are sales in pursuance of an offer to the public, — sales in the course of a business generally conducted at a standstill, or at least with frequent stops, and tending to collect a crowd. Formerly the prohibition was confined to standing in the street for the sale of any article. Rev. Ord. 1885, c. 28, § 44. Probably the change was made to avoid nice questions as to.what was standing, such as were raised in Commonwealths. Elliott, 121 Mass. 367, but the object is the same, as appears also from the context. Commonwealth v. McCafferty, 145 Mass. 384, 385.

Any one who has observed the obstruction to travel and the general inconvenience which are caused by a stationary object in our crowded and narrow streets, would be slow to declare unreasonable a prohibition intended to prevent that inconvenience. We are of opinion, both on principle and on authority, that for this purpose the city council lawfully may forbid public selling in the streets. Nightingale, petitioner, 11 Pick. 168, 171. Commonwealth v. Brooks, 109 Mass. 355, 358. Commonwealth v. Elliott, 121 Mass. 367. Commonwealth v. McCafferty, 145 Mass. 384. 1 Dillon, Mun. Corp. (4th ed.) §§ 387, 393 et seq. This being so, the ordinance is none the worse for the exception in case of a permit from the superintendent of streets. Commonwealth v. Plaisted, 148 Mass. 375, 382. Quincy v. Kennard, 151 Mass. 563. Commonwealth v. Page, 155 Mass. 227. Commonwealth v. Parks, 155 Mass. 531, 532. The fact that the defendant had a license as a pedler from the Commonwealth is not material on these exceptions. But the license did not authorize him to violate the ordinances of the city. Commonwealth v. Fenton, 139 Mass. 195. Commonwealth v. Lagorio, 141 Mass. 81. In the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled.