Borggaard v. Dep't of Pub. Works

• Decision Date: 15 October 1937
• Citation: 10 N.E.2d 724,298 Mass. 417
• Parties: BORGGAARD v. DEPARTMENT OF PUBLIC WORKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 417

10 N.E.2d 724

BORGGAARD

v.DEPARTMENT OF PUBLIC WORKS.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 15, 1937.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit in equity by Clarence S. Borggaard against the Department of Public Works. On reservation without decision by the presiding justice.

Decree for the plaintiff.L. Brown and H. P. Moulton, both of Boston, for plaintiff.

R. Clapp, Asst. Atty. Gen., for defendant.

LUMMUS, Justice.

G.L.(Ter.Ed.) c. 85, § 2, provides: ‘Said department [of public works], after a public hearing and with the approval of the governor and council, may from time to time make, alter, rescind or add to rules and regulations to direct, govern and restrict the movement of vehicles on all state highways and to carry out the purposes of section nine of chapter eighty-nine on highways, including state highways, which are designated thereunder by said department as through ways, with penalties for the violation thereof not exceeding twenty dollars for each offence; provided, that nothing in this section shall be construed to give said department the power to regulate the speed at which motor vehicles may be operated on such public ways.’ G.L. (Ter.Ed.) c. 89, § 9, empowers said department to designate a State or other highway as a ‘through way,’ and to approve such designation by a city or town, with the result that ‘every vehicle immediately before entering the limits of a through way,’ with certain exceptions, ‘shall be brought to a full stop.’ The department of public works consists of a commissioner and two associate commissioners. G.L.(Ter.Ed.) c. 16, § 2.

Purporting to act under the statute quoted, the department of public works, with the approval of the governor and council and after a public hearing, made rules and regulations requiring the equipment of certain motor vehicles with signals, visible from the front and rear, indicating any proposed change of direction. Only the most recent form of these rules and regulations, that adopted by the department on August 26, 1936, and approved by the governor and council on November 12, 1936, is material, for that was a substitute for earlier rules.

Paragraph (a) of section 12 of these rules and regulations is as follows: ‘Any signal herein required shall be given sufficient time in advance of the movement indicated to give ample warning to any person who may be affected by said movement, and shall be given either by means of the hand and arm in the manner specified [in paragraph (b) of the rule], or by a suitable mechancial or electrical device, or devices, approved by the department; but when a vehicle is so constructed or loaded that the distance from the center of the steering column to the left lateral extension of the body of the vehicle, exclusive of guards and running boards, or of the load, exceeds twenty-four inches, or the distance from the center of the top of the steering column to the rear end of the body of the vehicle, or combination of vehicles, exceeds fourteen feet, the vehicle, or combination of vehicles, shall be equipped with, and the signal shall be given by, a mechanical or electrical device, or devices, visible to the front and rear, and approved by the department.’ It is this requirement that certain vehicles shall be equipped with a mechanical or electrical signalling device that raises the question in this case.

The plaintiff is the owner of seven vehicles which, under the terms of section 12(a), must be equipped with mechanical or electrical signalling devices. He brought this bill in equity to restrain the enforcement of the rule. The case was set down for hearing on bill and answer (Equity Rule 12 ...