Commonwealth v. Ellis
| Decision Date | 03 April 1893 |
| Citation | 158 Mass. 555,33 N.E. 651 |
| Parties | COMMONWEALTH v. ELLIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from superior court, Suffolk county; Caleb Blodgett, Judge.
Complaint against Jerome W. Ellis for violation of an ordinance of the city of Boston forbidding selling on the public streets. Judgment was rendered against defendant on a verdict directed by the court, and he excepts. Exceptions overruled.
George C. Travis, First Asst. Atty. Gen., for the Commonwealth.
Patrick O'Loughlin, for defendant.
We must assume that the defendant was guilty of a breach of the Boston city ordinance against selling in the streets. Rev.Ord.1892, c. 43, § 35. The only question brought before us by the exceptions is whether the ordinance is valid. It must be construed in a rational way. See Com. v. Plaisted, 148 Mass. 375, 383, 19 N.E.Rep. 224. Of course, it does not mean that two persons walking together on the highway cannot make a bargain in their private conversation, and execute it on the spot. The sales referred to are sales in pursuance of an offer to the public; sales in the course of a business generally conducted at a standstill, or at least with frequent stops, and tending to collect a crowd. Formerly the prohibition was confined to standing in a street for the sale of any article. Rev.Ord.1885, c. 28, § 44. Probably the change was made to avoid nice questions as to what was standing, such as were raised in Com. v. Elliott, 121 Mass. 367, but the object is the same, as appears also from the context. Com. v. McCafferty, 145 Mass. 384, 385, 14 N.E.Rep. 451.
Any one who has observed the obstruction to travel and general inconvenience which are caused by a stationary object in our crowded and narrow streets would be slow to declare unreasonable a prohibition intended to prevent that inconvenience. We are of opinion, on both principle and authority, that for this purpose the city council lawfully may forbid public selling in the streets. Nightingale, Petitioner, 11 Pick. 168, 171;Com. v. Brooks, 109 Mass. 355, 358;Com. v. Elliott, 121 Mass. 367;Com. v. McCafferty, 145 Mass. 384, 14 N.E.Rep. 451; 1 Dill.Mun.Corp. (4th Ed.) §§ 387, 393, et seq. This being so, the ordinance is none the worse for the exception in case of a permit from the superintendent of streets. Com. v. Plaisted, 148 Mass. 375, 382, 19 N.E.Rep. 224; Quincy v. Kennard, 151 Mass. 563, 24 N.E.Rep. 860; Com. v. Page, 155 Mass. 227, 29 N.E.Rep. 512; Com....
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