Com. v. Dobbins

• Decision Date: 04 May 1962
• Citation: 182 N.E.2d 123,344 Mass. 272
• Parties: COMMONWEALTH v. Edward L. DOBBINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 123

182 N.E.2d 123

344 Mass. 272

COMMONWEALTH v. Edward L. DOBBINS.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued March 5, 1962.

Decided May 4, 1962.

Edward L. Dobbins pro se.

Leonard E. Gibbons, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

The defendant appeals from a conviction in the Superior Court on a complaint that on July 24, 1959, he 'did park a motor vehicle on Bartlett Avenue, after 11 p. m. for the purpose of all night parking' in violation of Pittsfield Revised Ordinances (1947) c. 40, art. V, § 2, which reads: 'Parking Prohibited in Specified Places. It shall be unlawful for the operator of a vehicle to park such vehicle at any time * * * (7) on the improved or paved surface of any street after eleven o'clock p. m. for the purpose of all night parking.' He was fined $3. The case was heard on agreed facts. The appeal is in conformity with G.L. (Ter.Ed.) c. 278, § 28. See Commonwealth v. Certain Gaming Implements, 313 Mass. 409, 411, 47 N.E.2d 939; Commonwealth v. Finnigan, 326 Mass. 378, 96 N.E.2d 715.

The automobile of the defendant was parked on the paved surface of Bartlett Avenue between 12 p. m. and 6 a. m. in front of No. 183, which is a dwelling house owned and occupied by him. There was no sign or other marking on Bartlett Avenue prohibiting all night parking or parking after 11 p. m.

One contention of the defendant is that statutory authority for the ordinance does not exist. The position of the Commonwealth is that the ordinance is authorized by G.L. c. 40, § 22 ¹ (as amended through St.1957, c. 417, § 1). ² This provides, with exceptions which no one argues are material, that 'a city or town may make ordinances or by-laws * * * for the regulation of carriages and vehicles used therein.' This statute 'is of long standing, its predecessors having been enacted many years before motor vehicles came into use.' M & M Transp. Co. v. Town of Wellesley, 333 Mass. 11, 13, 127 N.E.2d 794, 795. Section 22 contains a second paragraph added and revised by amendments (see St.1949, c. 644, § 1; St.1955, c. 458, § 1; St.1957, c. 417, § 1) exempting disabled veterans and handicapped persons from parking penalties.

The position of the defendant is that the ordinance, while arguably within the broad delegation of c. 40, § 22, has been cut down in scope by G.L. c. 40, § 21(21), which was added by St.1956, c. 509, authorizing towns and cities (G.L. c. 40, § 1) to enact by-laws and ordinances 'For prohibiting or regulating the parking of any motor vehicle in front of any dwelling house except by the occupants of said dwelling house, provided that notice of said prohibition or regulation is given by the use of portable or permanent signs.'

We think that § 22 does authorize municipalities to regulate parking. See Commonwealth v. Rice, 261 Mass. 340, 344, 158 N.E. 797, 55 A.L.R. 1128; Opinion of the Justices, 297 Mass. 559, 563-564, 8 N.E.2d 179; Leveillee v. Wright, 300 Mass. 382, 386-387, 15 N.E.2d 247. The exemptions in its second paragraph show that the Legislature has so intended.

There is then the question whether an ordinance, which was authorized at the time of enactment in 1947, ceased to be to some extent effective in 1956 by reason of the introduction of cl. 21 in c. 40, § 21, which allegedly contains an implied limitation upon the broad delegation in § 22. Statute 1956, c. 509, is entitled, 'An Act authorizing cities and towns to enact certain parking regulations.' We cannot believe that the Legislature intended sub silentio to affect an enabling statute (§ 22) which had its origin more than a century earlier in St.1847, c. 224, §§ 1, 2, and in accordance with which many ordinances and by-laws must have been passed. A holding that there was such a legislative intent would give occupants of dwelling houses, as to the area in front of their dwellings, an immunity from regulations designed to promote the free flow of traffic or safe driving conditions, or to preserve access to fire apparatus (see § 21, as amended by St.1961, c. 383), ambulances, and similar vehicles, or to enable snow removal (see § 21; § 22D, inserted by St.1961, c. 322). To state an example, a prohibition against parking on one side of a narrow street could not be enforced against the occupants of dwellings on the prohibited side.

We confess that we can observe no need for the enactment of St.1956, c. 509. Compare Vigoda v. Barton, 338 Mass. 302, 304-305, 155 N.E.2d 409. The composite effect of the statutes seems to be that a city can now enact an ordinance pursuant to either § 22, or § 21(21).

The defendant urges that the ordinance is an 'unreasonable exercise of [the] police power' delegated by § 22. The power to regulate the use of public ways which has been delegated to municipalities is not unlimited. See Commonwealth v. Surridge, 265 Mass. 425, 428, 164 N.E. 480, 62 A.L.R. 402; Commonwealth v. Wolbarst, 319 Mass. 291, 293, 65 N.E.2d 552; Commonwealth v. Carpenter, 325 Mass. 519, 91 N.E.2d 666. Nevertheless every presumption is to be indulged in favor of the validity of such regulations. Town of Concord v. Attorney Gen., 336 Mass. 17, 25, 142 N.E.2d 360; Brown v. Carlisle, 336 Mass. 147, 148, 142 N.E.2d 891. The record contains nothing to overcome the presumption of validity. There was nothing to show that the ordinance had no relation, for...