Commonwealth v. Thompson

53 Mass. 231

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1847
• Status: Published

Opinion

Shaw, C. J.

It was not contended, on the argument, that Hotel Square was not as much a public street and passage way, as any of the streets in East Boston; but it was contended— and this was the only exception brought to the notice of the court — that all the open streets in East Boston have been laid out by the proprietors; that they have not been laid out, or dedicated and accepted, by any legal authority, as highways or public ways; and that they cannot be regarded as lawful public streets. But the court are of opinion that this fact, if established, would afford no defence to the complaint. The case is precisely within the words of the statute. The statute does not limit its prohibition against smoking to high ways or public ways de jure; but by the terms “ street, lane or passage way,” it uses language sufficiently broad to include all open ways de facto actually used as such.

It is also within the spirit and intent of the statute, which was intended to gaurd the city against the damage of fire. This damage would be equally great from smoking in any street, used as such, whether laid out by lawful authority or not. L is within the principle laid down in the case of Commonwealth v. Gammons, 23 Pick. 201, respecting the duty of persons under the law of the road. That law was held to extend to all roads actually used as ways, whether legal highways or not.

Exceptions overruled.