Pedrick v. Bailey

78 Mass. 161

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1858
• Status: Published

Opinion

Bigelow, J.

There can be no doubt that tne awning for the removal of which damages are claimed in this action, was an unlawful erection and obstruction in a street of the city of Lawrence. It was not placed or maintained there with the consent of the mayor and aldermen. Its continuance without such consent was within the express prohibition of the city ordinance, which provides that persons may continue to maintain awnings and shades before any house or shop “ with the consent of the mayor and aldermen, and not otherwise.” It is equally clear, we think, that this ordinance was a lawful, proper and reasonable by-law, which the city council were fully authorized to establish under the charter of the city, St. 1853, c. 70, § 21, by which they were empowered to pass all such salutary and needful by-laws as towns by law have authority to establish, and which were to take effect and have full force without the sanction of any court. Among the leading and obvious duties of a municipal government is that of securing a nee and uninterrupted passage through streets situated in a populous neighborhood ; and a by-law intended to accomplish this purpose, by restraining and regulating erections over a portion of the travelled way, is clearly within the legitimate scope of the power confided to towns and cities. Goddard, petitioner, 16 Pick. 511. Especially is it within their province to regulate the construction of awnings, inasmuch as they are liable for damages occasioned to passers by through any defect or insufficiency in the construction. Drake v. Lowell, 13 Met. 292.

The only other question in the case is whether the removal of this unlawful obstruction by the mayor of the city was without legal authority. It seems to be very clear that it was not. It appears that he acted not only by virtue of the authority vested in himself as mayor of the city, but also under a vote of the mayor and aldermen, by which he was directed “to proceed forthwith to remove all wood awnings now standing in said city in violation of law.” On reference to the provisions of the city charter already cited, § 7, it will be found that the mayor is constituted the chief executive officer of the city, and he is expressly required to be vigilant in causing the laws and regulations of the city to be enforced; and by § 8 it is further provided, that “ the executive power of said city generally and the administration of the police shall be vested in and may be exercised by the mayor and aldermen as fully as if the same were herein specially enumerated.” Under this very broad and general grant and delegation of power to the mayor, he was armed with sufficient legal authority to enforce a by-law of the city, and to remove obstructions in the streets, which were erected in violation of the city ordinances. Indeed, it is difficult to see how the power could have been granted in fuller and more comprehensive terms.

Nor can it be contended that the ordinance of the city, by prescribing a penalty for an unlawful erection or continuance of an awning, restricted or in any degree abridged this power. By inflicting a fine on the offender, the framers of the ordinance did not intend to license or give permission for the continuance of the unlawful erection. The provision for the penalty was cumulative, not exclusive. The imposition of a fine did not render the structure lawful. It would still continue to be an illegal obstruction in the street, and liable to removal as such under the superintending power vested in the mayor.

The same answer is to be given to the suggestion that the whole power to remove obstructions in the streets was vested in the commissioner of streets elected under the provisions of the ordinance of the city, No. 5

* The design of this ordinance was not to abridge or take away any power vested by law in the mayor.or the mayor and aldermen. It was intended only as a delegation of a portion of their legal authority, so that it might be exercised on occasions when they could not be personally present and acting. The commissioner was only a subordinate officer, who, by the terms of the ordinance, was to exercise the duties devolved on him under the care and supervision of the mayor and aldermen. Exceptions sustained.

ORDINANCE NO. 5, ESTABLISHING THE OFFICE OF COMMISSIONER OF STREETS, AND DEFINING THE DUTIES THEREOF.

Sect. 1. There shall annually be appointed by the city council in convention, by ballot, an able and discreet person, to be styled the commissioner of streets, who shall also be the surveyor of highways, required by law to be chosen, and who shall continue in office until removal, or until a successor be appointed and sworn to the faithful performance of his duty. He shall receive such compensation for his services as the city council shall establish, and shall be removable at their pleasure; and in case said office shall become vacant by death, resignation or otherwise, a successor shall be appointed in the manner prescribed.

Sect. 2. It shall be the duty of the commissioner of streets, under the general care and supervision of the mayor and aldermen, to superintend the general state of the streets, roads, sidewalks, lanes, bridges, public walks and squares of the city, except the common; to attend to the making, widening or alteration of the same; to cause the same to be kept in good, sufficient and suitable repair, and to make all contracts for labor and materials that may be necessary; to superintend the building and repair of any drains or sewers for the city, and to make all necessary contracts for the same; such contracts to be in all cases subject to the approval of the mayor and aldermen. He shall also make all necessary arrangements for keeping the streets clean and in good order, and he shall give notice to the mayor or city marshal in case of any nuisance, obstruction or encroachment in or upon any of the streets, roads, sidewalks, bridges, public walks or squares of the city.

Sect. 3. The commissioner of streets may make such arrangements with the overseers of the poor, for the purpose of procuring labor and materials in the discharge of Ms duty aforesaid, as the interests of the city may require.