Brodbine v. Inhabitants of Town of Revere
| Decision Date | 26 February 1903 |
| Citation | 182 Mass. 598,66 N.E. 607 |
| Parties | BRODBINE v. INHABITANTS OF TOWN OF REVERE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
BenJ. B. Dewing, for petitioner.
Culter & James, for defendants.
The respondents' first contention is that the petitioner's appeal cannot avail him, because it was entered before the expiration of 30 days from the notice of the decision of the assessors, given in writing to the appellant. This objection was not taken until after the evidence was closed, and the argument was begun before the commissioner. The respondents had duly appeared and filed an agreement in writing for the appointment of a commissioner and had been fully heard before him. This action on their part was a waiver of their right to object to the jurisdiction by reason of the early entry of the appeal. National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N.E. 288.
The contention that it does not appear that the assessors refused to make an abatement to the petitioner is without foundation. After the hearing upon his petition, they gave him a notice in writing of their decision that he be given leave to withdraw. This was a decision adverse to him upon the petition, and was treated as such by the parties.
The most important question in the case grows out of the action of the metropolitan park commissioners in locating the Revere Beach Boulevard or Parkway, and in making rules and regulations in reference thereto. The contention is that the laying out and construction of the parkway left the petitioner with no access to a part of the land, except from the parkway, and that the rule of the parkway commissioners forbidding the driving of a wagon or other vehicle for carrying merchandise or other articles along the parkway made it impossible for him profitably to use the land for agricultural purposes, for which alone it would ordinarily be used. He therefore found that the value of the land was materially diminished by these acts of the park commissioners. St. 1894, c. 288, § 3, gives the board authority to 'make rules and regulations for the government and use of the roadways or boulevards under its care, breaches whereof shall be breaches of the peace punishable as such in any court having jurisdiction of the same.' The respondents contend that this statute is unconstitutional, as a delegation of legislative power. It is well established in this commonwealth and elsewhere that the Legislature cannot delegate the general power to make laws, conferred upon it by a constitution like that of Massachusetts. Opinion of Justices, 160 Mass. 589, 36 N.E. 488, 23 L. R. A. 113; Larcom v. Olin, 160 Mass. 102, 35 N.E. 113; Stone v. Charlestown, 114 Mass. 214; State v. Hayes, 61 N.H. 264; Barto v. Himrod, 8 N. Y. 483, 59 Am. Dec. 506; Gloversville v. Howell, 70 N.Y. 287; Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716; State v. Morris Company, 36 N. J. Law, 72, 13 Am. Rep. 422; Harbor Commissioners v. Excelsior Redwood Co., 88 Cal. 491, 26 P. 375, 22 Am. St. Rep. 321; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. This doctrine is held by the courts almost universally. There is a well-known exception to it, resting upon conditions existing from ancient times in most of the older states of the Union, which the constitutions of the states generally recognize, namely, the existence of town or other local governmental organizations which have always been accustomed to exercise self-government in regard to local police regulations, and other matters affecting peculiarly the interests of their own inhabitants. On this account the determination of matters of this kind has been held to be a proper exercise of local self-government, which the Legislature may commit to a city or town. Com. v. Bennett, 108 Mass. 27; Stone v. Charlestown, 114 Mass. 214; Opinion of Justices, 160 Mass. 589, 36 N.E. 488, 23 L. R. A. 113; People v. Albertson, 55 N.Y. 50; Gloversville v. Howell, 70 N.Y. 287; State v. Morris Co., 36 N. J. Law, 72, 13 Am. Rep. 422. How far this principle may be extended, in the proper application of it, is a subject on which there is much difference of opinion among judges. Whether it will justify the creation of a tribunal other than the voters or their usual representatives, where they have a representative government for the management of municipal affairs, seems not to have been much considered by the courts. It is very clear, where the people of a city or town have become so numerous that the management of their municipal affairs can be conducted conveniently only by a representative body like a city council, that municipal legislation, such as making ordinances and regulations as to local matters affecting the health, safety, and convenience of the people, may be intrusted to the people's chosen representative in a city government. Hence city councils are usually authorized to pass ordinances, as voters of towns adopt by-laws. In this commonwealth, legislation has gone further than this. Apparently, on grounds of expediency, amounting almost to necessity, the making of rules and regulations for the preservation of the public health has been intrusted to boards of health in towns, as well as in cities, and to a state board of health; and a violation of the rules established by city or town boards has long been, and is now, punishable in the courts. St. 1816, c. 44, § 3; Rev. St. c. 21, §§ 1, 5, 6; Gen. St. c. 26, §§ 1-5; Pub. St. c. 80, §§ 1, 4, 8, 18; Rev. Laws, c. 75, § 65. The validity of these statutes, which has long been recognized, stands upon one or both of two grounds: They may be considered as being within the principle permitting local self-government as to such matters; the board of health being treated as properly representing the inhabitants in making regulations, which often are needed at short notice, and which could not well be made, in all kinds of cases, by the voters in town meeting assembled. Perhaps some of these statutes may also be justified constitutionally on the ground...
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