Commonwealth v. Mulhall

39 N.E. 183, 162 Mass. 496, 1895 Mass. LEXIS 310

• Court: Massachusetts Supreme Judicial Court
• Decided: January 1, 1895
• Status: Published

Opinion

Knowlton, J.

By Pub. Sts. c. 53, § 15, it is provided that “ the mayor and aldermen and selectmen may make such rules and regulations for the passage of carriages, wagons, carts, •trucks, sleds, sleighs, horse cars, or other vehicles, or for the use of sleds or other vehicles for coasting in and through the streets or public ways of a city or town, as they may deem necessary for the public safety or convenience, with penalties for the violation thereof not exceeding twenty dollars for each offence.” This statute was originally enacted in similar language in the St. of 1875, c. 136, § 1. The ordinance which the defendant is alleged to have violated- is as follows: “ No person shall carry or cause to be carried on any vehicle in any street a load the weight whereof exceeds three tons, unless such load consists of an article which cannot be divided.” The statute above quoted has reference to the safety and convenience of the public in the use of the streets. Many of the streets of Boston are greatly crowded, not only with pedestrians, but with vehicles of almost every kind. It cannot fairly be said that this ordinance has no reference to the convenience or safety of the public who use the streets. We can see that very heavily loaded teams, drawn by four or six horses, in the most crowded parts of the city, might seriously interfere with the convenient use of the streets by others. If the ordinance is within the class of ordinances in regard to which this statute permits the mayor and aldermen to exercise their judgment and discretion, we cannot declare it void on the ground that we might have decided the question in reference to the necessity of the ordinance differently. If they deem such an ordinance necessary for the public safety or convenience, and if it is not a clear invasion of private rights secured by the Constitution, it must stand as a regulation made under legislative authority. We think the facts offered to be proved do not take the case out of the field of regulation by the Legislature, or by the mayor and aldermen as a local tribunal acting under the authority of the Legislature. If it appeared that the ordinance could have no relation to the safety or convenience of the public in the use of the streets, the fact that the mayor .and aldermen declare the regulation to be necessary would not give it validity. But we cannot say that they were in error in deciding that the use of heavily loaded vehicles is a matter affecting the public in the use of the streets, which may be regulated under the statute, nor can we say that the ordinance is anything more than a regulation, upon the necessity of which their decision is final. Commonwealth v. Stodder, 2 Cush. 562. Commonwealth v. Robertson, 5 Cush. 438. Commonwealth v. Fenton, 139 Mass. 195. Commonwealth v. Plaisted, 148 Mass. 375. Commonwealth v. Ellis, 158 Mass. 555.

Exceptions overruled.