Commonwealth v. Baronas

• Citation: 285 Mass. 321,189 N.E. 62
• Parties: COMMONWEALTH v. BARONAS.
• Decision Date: 16 February 1934
• Court: United States State Supreme Judicial Court of Massachusetts

285 Mass. 321

189 N.E. 62

COMMONWEALTH

v.BARONAS.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 16, 1934.

Exceptions from Superior Court, Worcester County; Hobson, District Judge.

Paul Baronas was convicted of having intoxicating liquor in his possession at an amusement park in the Town of Lunenburg, and he brings exceptions.

Exceptions overruled.A. S. Houghton, Asst. Dist. Atty., of Worcester, for the commonwealth.

A. A. Gelinas, of Fitchburg, for defendant.

WAIT, Justice.

Article VIII, section 5 of the duly enacted by-laws of the town of Lunenburg provides that ‘No person under the influence of liquor shall be admitted to, or be permittedto remain at a public dance. No person shall have any intoxicating liquor in his possession in any park, dance hall, or other public place in this town.’ By article X, whoever violates article VIII shall, ‘in cases not otherwise provided for, forfeit and pay for each offense a fine not exceeding twenty dollars.’ These by-laws were in force on July 15, 1933. On that day the defendant admittedly had intoxicating liquor in his possession at an amusement park in the town, owned privately, to which the public has a right of access. On complaint he was found guilty and sentenced to pay a fine of $3. The case is before us upon his exceptions to the refusal of the trial judge to order a verdict of not guilty, and to rule, as requested, that: ‘1. The by-law is unreasonable and void. 2. The by-law is unconstitutional in that it is repugnant to law. 3. The by-law is not authorized by the common law or by the statutes.’

G. L. (Ter. Ed.) c. 40, § 21, re-enacting law which has existed from our earliest history, provides that: ‘Towns may, for the purposes hereinafter named, make such orders and by-laws, not repugnant to law, as they may judge most conducive to their welfare: * * * (1) For directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.’ Such by-laws must be reasonable, Greene v. Mayor of Fitchburg, 219 Mass. 121, 106 N. E. 573,Goldstein v. Conner, 212 Mass. 57, 98 N. E. 701, and ‘not repugnant to law.’

No discussion is needed to show that a prohibition of the presence of intoxicated persons and of intoxicating liquor at public dances, public parks and public places of entertainment is reasonable. Nothing could be more effective in ‘preserving peace and good order.’ The by-law could not properly be ruled to be unreasonable. But a by-law to be valid must also be ‘not repugnant to law’; and it has been held that where by legislation a subject matter has been fully dealt with, a by-law of a town or city dealing further and otherwise with that subject matter is ‘repugnant to law’ within the meaning of this statute. Cox v. Segee, 206 Mass. 380, 92 N. E. 620;Commonwealth v. Turner, 1 Cush. 493;Greene v. Mayor of Fitchburg, 219 Mass. 121, 106 N. E. 573. But see Commonwealth v. Ellis, 158 Mass. 555, 33 N. E. 651;Commonwealth v. McFarlane, 257 Mass. 630, 154 N. E. 83. See Southborough v. Boston & Worcester Street Railway, 250 Mass. 234, 239, 145 N. E. 422. There can be no question that the possession, use, sale and keeping of intoxicating liquors have been fully covered by the legislation of the commonwealth. No prohibition of the mere possession of intoxicating liquors appears in that legislation. Commonwealth v. Kozlowsky, 243 Mass. 538, 541, 138 N. E. 14;Commonwealth v. Hayes, 114 Mass. 282.

The defendant contends that this by-law attempts to legislate with reference to intoxicating liquor and imposes a penalty for mere possession of such liquor, so that it is clearly repugnant to the law. He misapprehends the scope and application of the by-law. It does not deal with intoxicating liquor or seek to control its keeping or sale. It deals with the maintenance of the peace and good order in Lunenburg. The situation is comparable to that illustrated in Commonwealth v. Davis, 140 Mass. 485, 4 N. E. 577, and Id., 162 Mass. 510, 39 N. E. 113,26 L. R. A. 712, 44 Am. St. Rep. 389, where an ordinance forbidding public addresses on Boston Common was held valid. Free speech is guaranteed by...