Prescott v. Battersby

Massachusetts Supreme Judicial Court

Prescott v. Battersby

119 Mass. 285, 1876 Mass. LEXIS 17

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 4, 1876

StatusPublished

Cited by9 cases

This text of 119 Mass. 285 (Prescott v. Battersby) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Prescott v. Battersby, 119 Mass. 285, 1876 Mass. LEXIS 17 (Mass. 1876).

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Opinion

Endicott, J.

Towns are required at their annual meetings to choose one or more surveyors of lumber. Gen. Sts. c. 18, § 31. The provisions of this section apply to cities, so far as they are not inconsistent with the general or special provisions relating to cities; and the city council of a city has the power of á town, subject to this restriction. Gen.. Sts. c. 19, § 2. By the Gen. Sts. c. 49, § 131, cities, except those mentioned in § 126, “may from time to time establish ” ordinances with suitable penalties respecting the appointment of surveyors of lumber. And the city charter of Lawrence, St. 1853, c. 70, § 15, also provides that the city of Lawrence may establish such ordinances.

It appears from the record that the city of Lawrence has never passed any ordinance on this subject, but that it has annually elected surveyors of lumber, who have acted in that capacity, and that, at the time of the sale in question, there were in Lawrence such officers duly elected and sworn.

The lumber for which the plaintiffs seek to recover in this action was not surveyed, marked or numbered as required by the provisions of the Gen. Sts. c. 49, §§ 132-144; but the plaintiffs contend, that, as the city of Lawrence had passed no ordinances [287]*287on the subject, the sale does not come within the provisions of that chapter.

But this position is not tenable. It was evidently the object of the Legislature to establish, by general law, uniform regulations respecting the sale of lumber, and to impose upon all cities and towns the duty of electing surveyors. The provision that cities may pass ordinances on the subject with suitable penalties is not compulsory; and if a city fails to pass such an ordinance, it still has the duty of electing surveyors, and the provisions of the Gen. Sts. e. 49, apply to sales of lumber within its limits.

Any one who sells lumber brought into the state for sale, and which is not surveyed, marked and numbered as required by the statute, is subject to the penalty imposed in § 143. This penalty implies a prohibition to sell except as provided in the statute, and the plaintiffs cannot recover the price of the lumber sold in violation of these provisions. Miller v. Post, 1 Allen, 434. Libby v. Downey, 5 Allen, 299. Sawyer v. Smith, 109 Mass. 220.

The St. of 1875, c. 153, has no reference to sales of lumber, but to sales of goods, wares and merchandise by weights and measures; if it had, as contended by the plaintiffs, it can only apply to sales made after its passage.

Judgment for defendants.

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Endicott, J.

Towns are required at their annual meetings to choose one or more surveyors of lumber. Gen. Sts. c. 18, § 31. The provisions of this section apply to cities, so far as they are not inconsistent with the general or special provisions relating to cities; and the city council of a city has the power of á town, subject to this restriction. Gen.. Sts. c. 19, § 2. By the Gen. Sts. c. 49, § 131, cities, except those mentioned in § 126, “may from time to time establish ” ordinances with suitable penalties respecting the appointment of surveyors of lumber. And the city charter of Lawrence, St. 1853, c. 70, § 15, also provides that the city of Lawrence may establish such ordinances.

It appears from the record that the city of Lawrence has never passed any ordinance on this subject, but that it has annually elected surveyors of lumber, who have acted in that capacity, and that, at the time of the sale in question, there were in Lawrence such officers duly elected and sworn.

The lumber for which the plaintiffs seek to recover in this action was not surveyed, marked or numbered as required by the provisions of the Gen. Sts. c. 49, §§ 132-144; but the plaintiffs contend, that, as the city of Lawrence had passed no ordinances [287]*287on the subject, the sale does not come within the provisions of that chapter.

But this position is not tenable. It was evidently the object of the Legislature to establish, by general law, uniform regulations respecting the sale of lumber, and to impose upon all cities and towns the duty of electing surveyors. The provision that cities may pass ordinances on the subject with suitable penalties is not compulsory; and if a city fails to pass such an ordinance, it still has the duty of electing surveyors, and the provisions of the Gen. Sts. e. 49, apply to sales of lumber within its limits.

Any one who sells lumber brought into the state for sale, and which is not surveyed, marked and numbered as required by the statute, is subject to the penalty imposed in § 143. This penalty implies a prohibition to sell except as provided in the statute, and the plaintiffs cannot recover the price of the lumber sold in violation of these provisions. Miller v. Post, 1 Allen, 434. Libby v. Downey, 5 Allen, 299. Sawyer v. Smith, 109 Mass. 220.

The St. of 1875, c. 153, has no reference to sales of lumber, but to sales of goods, wares and merchandise by weights and measures; if it had, as contended by the plaintiffs, it can only apply to sales made after its passage.

Judgment for defendants.

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Bluebook (online)

119 Mass. 285, 1876 Mass. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prescott-v-battersby-mass-1876.

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