Com. v. Berney

• Decision Date: 02 February 1968
• Citation: 353 Mass. 571,233 N.E.2d 739
• Parties: COMMONWEALTH v. Arthur L. BERNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 739

233 N.E.2d 739

353 Mass. 571

COMMONWEALTH v. Arthur L. BERNEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 2, 1968.

Decided Feb. 2, 1968.

William A. Mc.cormack, Jr., Medford, for defendant.

Herbert Abrams, Asst. Dist. Atty., for the Commonwealth (Phillip Cowin, Town Counsel, for Town of Brookline, with him).

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

SPALDING, Justice.

The defendant appeals from convictions in the Superior Court on four complaints charging that on certain specified dates he 'did park * * * (his motor vehicle) on Winthrop Road (in Brookline) for a period of time longer than one hour between the hours of two in the morning and six in the morning against * * * the form of the Traffic Rule and Order of said Brookline.' A fine of $1 on each complaint was imposed.

The appeals are under G.L. c. 278, § 28, which provides, so far as material, that 'A defendant aggrieved by a judgment of the superior court founded upon matter of law apparent upon the record in any criminal proceeding * * * may appeal therefrom' to this court. The defendant challenges the convictions on the ground that the all night parking prohibition appearing in the traffic rules and regulations promulgated by the Traffic Commission of the town was invalid. The record, however, shows only the complaints and the facts that the defendant was convicted and fined. The challenged rule is not before us and we do not take judicial notice of it. O'Brien v. Woburn, 184 Mass. 598, 69 N.E. 350 (city ordinance). Finlay v. Eastern Racing Ass'n., Inc., 208 Mass. 20, 26--27, 30 N.E.2d 859 (rules of State Racing Commission). Cerwonka v. Town of Saugus, 316 Mass. 152, 153, 55 N.E.2d 1 (town by-laws). Forbes v. Kane, 316 Mass. 207, 210, 55 N.E.2d 220 (city ordinance). The rule should have been introduced in evidence in the trial court and either made part of a bill of exceptions, if the case were brought here on exceptions (Forbes v. Kane, supra); or, if the case were to come here on appeal under G.L. c. 278, § 28, included in a statement of agreed facts and made a part of the record, as was done in Commonwealth v. Dobbins, 344 Mass. 272, 182 N.E.2d 123. For an exhaustive discussion as to what constitutes the 'record' in a statute similar to § 28, see Harrington v. Anderson, 316 Mass. 187, 191--193, 55 N.E.2d 30. Thus, since the challenged rule is not properly before us, we perceive no error in the judgments 'founded upon matter of law apparent upon the record' and they must be affirmed. The case could very well end here. But, since the result will be the same, and the parties are in agreement as to the existence and wording of the rule sought to be assailed and have dealt with it in their briefs, an expression of our views is not inappropriate.

By St.1960, c. 631, the Legislature established a traffic commission in the town of Brookline. The statute was to become effective upon its acceptance by the town and it appears to have been accepted. Section 3 of c. 631, as amended by St.1962, c. 420, § 2, reads, in part, 'The commission shall have exclusive authority, except as otherwise herein provided, to adopt, amend, alter and repeal rules and regulations, not inconsistent with general law as modified by this act, relative to vehicular street traffic in the town, and to the movement, stopping or standing of vehicles on, and their exclusion from, all or any streets, ways, highways, roads and parkways, under the control of the town, including rules and regulations designating any way or part thereof under said control as a through way under and subject to the provisions of section nine of chapter eighty-nine of the General Laws, and shall also have all authority previously granted to the selectmen by virtue of the provisions of section twenty-two of chapter forty of the General Laws. Said commission may prescribe a schedule of fines not exceeding fifteen dollars for each violation of parking regulations in the calendar year as authorized by section twenty A of chapter ninety of the General Laws.'

Pursuant to this statute the Traffic Commission promulgated rules. Of these, art. V, § 11, is here pertinent and it reads: 'No All Night Parking--It shall be unlawful for the driver of any vehicle, other than one acting in an emergency, to park said vehicle on any street for a period of time longer than one (1) hour between the hours of 2:00 A.M. and 6:00 A.M. of any day.' It is to be noted that the enabling act gave the commission all of the authority previously granted to selectmen by virtue of the provisions of G.L. c. 40, § 22, which authorized (with exceptions not here material) the making of rules 'for the regulation of carriages and vehicles used therein.'

We held in Commonwealth v. Dobbins, 344 Mass. 272, 182 N.E.2d 123, that the power...