Commonwealth v. Davis

• Decision Date: 08 January 1886
• Citation: 140 Mass. 485,4 N.E. 577
• Parties: COMMONWEALTH v. DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 485

4 N.E. 577

COMMONWEALTH v. DAVIS.

Supreme Judicial Court of Massachusetts.

January 8, 1886

COUNSEL

James F. Pickering, for defendant.

Edgar J. Sherman, Atty Gen., for the Commonwealth.

OPINION

MORTON, J.

By the city charter of Boston, the city government has the "power to make all such needful and salutary by-laws or ordinances, not inconsistent with the laws of this commonwealth, as towns by the laws of this commonwealth have power to make and establish, and to annex penalties, not exceeding fifty dollars, for the breach thereof; which by-laws and ordinances will take effect and be in force from and after the time therein respectively limited, without the sanction or confirmation of any court or other authority whatsoever." St.1854, c. 118, § 35. In pursuance of this power, the city government committee formed the ordinance under which these complaints were brought, which is as follows: "No person shall, except by permission of the said committee, deliver a sermon, lecture, address, or discourse on the common or other public grounds." Rev Ord. c. 37, § 11. This ordinance is not inconsistent with any law of the commonwealth, and we see no ground for holding it to be unreasonable and invalid. Its purpose is to promote the public peace, and to protect the public grounds from injury and it is calculated to effect these ends without violating the just rights of any citizen.

The defendant's claim, that this ordinance has become obsolete, because the same or similar ordinance enacted in 1862 has not been enforced, and has been repeatedly violated cannot be sustained. A statute or ordinance remains in force until it is repealed. The ordinance under which the defendant was convicted, was enacted in 1882, and the evidence offered to show that the ordinance of 1862 had been disregarded or disused was immaterial, and rightly rejected.

The defendant contends that this ordinance is invalid because it has not been recorded in the office of the clerk of the superior court for the county of Suffolk, under Pub.St. c 27, § 21. But this provision, requiring a record in the clerk's office, applies only to the by-laws of the towns which are required to be approved by the superior court, or a justice thereof. The provisions of the twenty-seventh chapter of the Public Statutes apply to cities only, "so far as they are not inconsistent with the general or special provisions relating thereto." ...