Commonwealth v. Clay

• Decision Date: 19 May 1916
• Parties: COMMONWEALTH v. CLAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 271

112 N.E. 867

COMMONWEALTH

v.CLAY.

Supreme Judicial Court of Massachusetts, Essex.

May 19, 1916.

Report from Superior Court, Essex County; Joseph F. Quinn, Judge.

Stephen Clay was found guilty of violation of market ordinances. Case reported to the Supreme Judicial Court. Judgment on the verdict ordered.

Such violation consisted in occupying a stand within the limits of the market place in Salem without having that stand assigned to him by the board of control having supervision of the market. Defendant declined to pay the usual fee.

Louis S. Cox, Dist. Atty., of Lawrence, for the Commonwealth.

Walter H. Southwick, of Lynn, for defendant.

BRALEY, J.

If the ordinance for the violation of which he has been prosecuted is valid, the defendant concedes that the verdict of guilty must stand. By the provisions of the deed under which the city of Salem acquired title, the land granted was to be used ‘solely for a city way or public square or market and no buildingsare ever to be erected thereon.’ The defendant's first contention is that under the deed he had the right in common with his fellow citizens to use the premises for the sale of vegetables and fruits to the public without paying the ‘compensation for permission to stand in said market’ required by the ordinance. The ‘market’ is defined by section 2 of the ordinance as ‘the streets on the east and west side of the market house in Derby square and the area south of said house,’ which includes the portion occupied by the defendant while vending his commodities. But while no buildings are to be erected, and the granted premises must be kept open for a city market unless used as a public square or way, no restrictions or conditions are found limiting the power of the city to regulate the use of the market. It appears that twenty years prior to the grant, the market house had been erected on land given to the town contiguous to the market ‘for the purpose of a market house and town hall to be erected thereon by said inhabitants for the use of the town, together with another piece of land and flats for the use of a fish market,’ and a house having been built, the market after its acquisition has been used in connection therewith. By St. 1816, c. 103, the selectmen when Salem was a town were authorized

‘to make rules and orders not repugnant to the constitution or laws of this commonwealth, for the due regulation and government of the market house of said town, and of the market carts, wagons, sleds, sleighs, and other vehicles or carriages, used for marketing in said town, and of the market men who frequent said town for the purpose of buying and selling provisions and other commodities in open market; and the said selectmen be and hereby are authorized to appoint, from time to time, suitable places in the streets, squares and other public places in said town, in which all wagons, carts, sleds, sleighs, or other vehicles or carriages, containing provisions, wood, hay, barrels or other commodities for sale in open market, shall stand, for the purpose of such sale; which rules and orders, when approved by the inhabitants of said town, in legal town meeting assembled, shall be and become by-laws of said town, and shall be binding upon all persons whomsoever.’

The powers thus conferred on the selectmen have been transmitted by the city charters after Salem became a city, and the agreed facts state that from time to time ordinances relating to the market house and market have been passed. St. 1836, c. 42; St. 1912, c. 559; Cashman v. City Clerk of Salem, 213 Mass. 153, 159, 100 N. E. 58. The necessity of providing for some system of regulation and control of the market affording protection to the public of the quality of food sold as well as giving an equal opportunity to vendors desiring...