Commonwealth v. Davis

• Decision Date: 01 January 1895
• Citation: Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113 (Mass. 1895)
• Parties: COMMONWEALTH v. DAVIS.
• Court: Supreme Judicial Court of Massachusetts

162 Mass. 510

39 N.E. 113

COMMONWEALTH v. DAVIS.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1895

COUNSEL

James W Pickering, for defendant.

M.J Sughrue, 2d Asst. Dist. Atty., for the Commonwealth.

OPINION

HOLMES J.

The only question raised by these exceptions which was not decided in the former case of Com. v. Davis, 140 Mass. 485, 4 N.E. 577, is one concerning the construction of the present ordinance. That such an ordinance is constitutional is implied by the former decision, and does not appear to us open to doubt. To say that it is unconstitutional means that, even if the legislature has purported to authorize it, the attempt was vain. The argument to that effect involves the same kind of fallacy that was dealt with in McAuliffe v. New Bedford, 155 Mass 216, 29 N.E. 517. It assumes that the ordinance is directed against free speech generally (as in Village of Des Plaines v. Boyer, 123 Ill. 348, 14 N.E. 677, the ordinance held void was directed against public picnics and open-air dances generally), whereas in fact it is directed toward the modes in which Boston Common may be used. There is no evidence before us to show that the power of the legislature over the common is less than its power over any other park dedicated to the use of the public, or over public streets, the legal title to which is in a city or town. Lincoln v. Boston, 148 Mass. 578, 580, 20 N.E. 329. As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary rights interfere, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes. See Dill.Mun.Corp. §§ 393, 407 651, 656, 666; Commissioners v. Armstrong 45 N.Y. 234, 243, 244.

If the legislature had power, under the constitution, to pass a law in the form of the present ordinance, there is no doubt that it could authorize the city of Boston to pass the ordinance and it is settled by the former decision that it has done so. As matter of history, we suppose, there is no doubt that the town, and, after it, the city, always regulated the use of the common,...