Commonwealth v. Kimball

• Decision Date: 04 February 1938
• Citation: 13 N.E.2d 18,299 Mass. 353
• Parties: COMMONWEALTH v. KIMBALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 353

13 N.E.2d 18

COMMONWEALTH

v.KIMBALL.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 4, 1938.

Exceptions from Superior Court, Bristol County; Hayes, Judge.

Complaint to a district court heard in superior court without a jury by a judge of the district court sitting in superior court under statutory provisions, charging Ann Kimball with distribution of hand bills in a public street without a permit to do so. Defendant's motion to quash the complaint was refused, and defendant saved exceptions.

Exceptions overruled.E. J. Harrington, Asst. Dist. Atty., of New Bedford, for the commonwealth.

D. Silverstein, of Fall River, for defendant.

LUMMUS, Justice.

This is a complaint to a district court, charging that the defendant ‘did distribute hand bills in a public street, she * * * not then and there having a permit to do so.’ She renewed in the Superior Court on appeal a motion made in the District Court to quash the complaint for the reason that ‘the offense charged against the defendant is unknown to law.’ The only point argued upon the motion is that the complaint did not set forth the ordinance, and allege that the act charged was contrary thereto. An ordinance of the city of Fall River, the Commonwealth admits, is the sole foundation of the complaint.

Originally a complaint for violation of an ordinance recited the ordinance. After statutes had dispensed with this requirement for certain courts (Commonwealth v. Worcester, 3 Pick. 462, 473, 474), it was abolished generally by St.1846, c. 62. See now G.L.(Ter.Ed.) c. 277, § 33. Originally such a complaint concluded contra formam statuti. Commonwealth v. Worcester, 3 Pick. 462, 475;Commonwealth v. Gay, 5 Pick. 44. But such a conclusion was made unnecessary by St.1858, c. 23, applying to complaints the provision as to indictments made by R.S.1836, c. 137, § 14. See now G.L.(Ter.Ed.) c. 277, § 33. A practice existed, after those enactments, of concluding such a complaint with the allegation that the act charged was contrary to the form of the ordinance. Commonwealth v. Nightingale, Thacher Cr.Cas. 251, 259; Commonwealth v. Odenweller, 156 Mass. 234, 30 N.E. 1022. Any need of such a conclusion was ended by St.1899, c. 409, § 3. See now G.L. (Ter.Ed.) c. 277, § 33. The removal of these formal requirements was not absolute, for the omission of them may still avail a defendant if it ‘tends to the prejudice of the defendant.’ G. L. (Ter.Ed.) c. 277, § 33. But it was said in Commonwealth v. Freelove, 150 Mass. 66, 22 N.E. 435, that the omission of such a formal conclusion ‘would not prejudice’ a defendant.

The fact that it is no longer necessary to refer in a complaint to an ordinance upon which it is based, may seem anomalous when we consider that the defendant may be left in doubt as to whether he is being prosecuted at common law (Commonwealth v. Springfield, 7 Mass. 9, 13;Commonwealth v. Hoxey, 16 Mass. 385), or under a supposed statute (Commonwealth v. Freelove, 150 Mass. 66, 67, 22 N.E. 435;Commonwealth v. Andler, 247 Mass. 580, 142 N.E. 921;Commonwealth v. Cooper, 264 Mass. 378, 162 N.E. 733;G.L. [Ter. Ed.] c. 279, § 37), or under an ordinance, for it is still law that a court cannot know without proof whether any ordinance exists which would be violated by the act alleged in the complaint (Mahar v. Steuer, 170 Mass. 454, 456, 49 N.E. 741;Attorney General v. McCabe, 172 Mass. 417, 420, 52 N.E. 717;O'Brien v. Woburn, 184 Mass. 598, 600, 69 N.E. 350;Rogers v. Abbott, 248 Mass. 220, 224, 142 N.E. 923;Brodsky v. Fine, 263 Mass. 51, 54, 160 N.E. 335;Wolbarsht v. Donnelly, 291 Mass. 229, 197 N.E. 6). But precision has yielded to convenience. It cannot be ruled as matter of law that the omission to refer to the ordinance tended ‘to the prejudice of the defendant.’ Commonwealth v. Reid, 175 Mass. 325, 330, 331, 56 N.E. 617;Commonwealth v. Lee, 247 Mass. 107, 108, 109, 141 N.E. 607. The defendant does not contend that she was prejudiced. Furthermore, G.L. (Ter.Ed.) c. 277, § 34, provides: ‘An indictment [or complaint, section 79] shall not be quashed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defence; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars under section forty.’ No bill of particulars was asked. The formal objection to the complaint cannot be sustained.

Coming to the merits, an ordinance of Fall River, adopted in 1930, provided as follows: ‘No person shall distribute posters, bills nor sheets of paper of any description, containing advertising matter of any kind, whether printed or written, in any public street, highway, or public place; nor shall cause the same to be done by another.’ What the defendant did distribute in a public street in Fall River consisted of four pieces of paper apparently fastened together at the top, each printed or prepared by some means of making many copies at one time advocating a certain labor organization, the whole being entitled ‘Garment Worker’ and signed ‘International Ladies Garment Workers' Union Locals, 178, 232, 233, 304 South Main St., Fall River Massachusetts.’ On one of the sheets in the following: ‘Sitdown! Exciting new play based on the auto strikes given by Brookwood Players Anawan Hall Wed. Ap. 7. 8:00 pm. Tickets may be obtained free at the office of the Union.’ We think that these pieces of paper could be found to be ‘handbills' within the language of the complaint, and ‘bills' and ‘sheets of paper’ containing ‘advertising matter’ within the language of the ordinance. The word advertising is not limited to notices for commercial purposes.

The Legislature may delegate to local authorities the power to make local police regulations. Brodbine v. Revere, 182 Mass. 598, 600, 66 N.E. 607;Commonwealth v. Fox, 218 Mass. 498, 106 N.E. 137, Ann.Cas.1916A, 1236;In re Opinion of the Justices, 286 Mass. 611, 617-619, 191 N.E. 33. ‘An ordinance which goes beyond the authority conferred by the enabling statute is invalid.’ Cawley v. Northern Waste Co., 239 Mass. 540, 544, 132 N.E. 365, 366. No statute specifically gives power to the city of Fall River or to cities generally to regulate the distribution of handbills on the streets. But the present Plan D charter of Fall River (G.L. [Ter.Ed.] c. 43, §§ 79-92; Sullivan v. Lawson, 267 Mass. 438, 166 N.E. 850;Openshaw v. Fall River, 287 Mass. 426, 192 N.E. 46) preserves the legislative powers(section 3) granted to the city by its earlier charter (St.1902, c. 393), which in section 15(4) gave power ‘to make ordinances for all purposes for which towns and cities may make by-laws and ordinances under general laws.’ Clarke v. Fall River, 219 Mass. 580, 584, 107 N.E. 419. Turning to the general laws, by G.L.(Ter.Ed.) c. 40, § 21(1), towns, including cities, chapter 40, section 1; chapter 4, section 7(34) may make by-laws, including ordinances, chapter 4, section 7(22), for the purpose of ‘directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.’ We pass by the expression ‘prudential affairs.’ Clarke v. Fall River, 219 Mass. 580, 584, 107 N.E. 419;McNeil v. Mayor and City Council of Peabody, Mass., 9 N.E.2d 566. The words more particularly applicable to this case are ‘maintaining their internal police.’ These words do not transfer to municipalities the entire police power of the Commonwealth, and do not enable a city to establish a local policy in important matters of general concern, like the prohibition or regulation of the sale of liquor. Commonwealth v. Turner, 1 Cush. 493. See, also, Commonwealth v. Drew, 208 Mass. 493, 495, 496, 94 N.E. 682, 33 L.R.A.,N.S., 401. But they do authorize a variety of police regulations of a local or ‘internal’ nature. In re Vandine, Petitioner, 6 Pick. 187,17 Am.Dec. 351 (removal of garbage); In re Goddard, Petitioner, 16 Pick. 504,28 Am.Dec. 259 (removal of snow); Hall v. Kent, 11 Gray 467 (obstructing street); Pedrick v. Bailey, 12 Gray 161 (awnings over sidewalks); Commonwealth v. Bean, 14 Gray 52 (permitting animals to graze on streets); Commonwealth v. Curtis, 9 Allen 266 (permitting animals to go on sidewalks); Commonwealth v. Patch, 97 Mass. 221 (keeping swine; compare Commonwealth v. Rawson, 183 Mass. 491, 67 N.E. 605;Commonwealth v. Parks, 155 Mass. 531, 30 N.E. 174 (blasting without consent of aldermen); Commonwealth v. Hubley, 172 Mass. 58, 51 N.E. 448,42 L.R.A. 403, 70 Am.St.Rep. 242 (collecting old rags); Commonwealth v. Baronas, 285 Mass. 321, 189 N.E. 62 (carrying liquor at a public dance). Nearest to the present case are Commonwealth v. McCafferty, 145 Mass. 384, 385, 14 N.E. 451, and Commonwealth v. Haffer, 279 Mass. 73, 180 N.E. 615, where the statutory words in question were held to authorize an ordinance prohibiting the carrying on a sidewalk of a placard for the purpose of displaying it, and Commonwealth v. Ellis, 158 Mass. 555, 33 N.E. 651, where they were held to authorize an ordinance prohibiting selling in streets. The distribution of handbills or similar papers in streets tends to annoy travelers and abutters, to obstruct the streets, and to litter them with paper. It seems to us a valid exercise of the power to maintain the ‘internal police’ of a city, to prohibit such distribution entirely. In re Anderson, 69 Neb. 686, 96 N.W. 149,5 Ann.Cas. 421, an opinion by Pound, C.; Milwaukee v. Kassen, 203 Wis. 383, 234 N.W. 352;Wettengle v. Denver, 20 Colo. 552, 39 P. 343;People v. Horwitz, Mag.Ct., 140 N.Y.S. 437;Almassi v. Newark, 150 A. 217, 8 N.J.Misc. 420, cited with apparent approval in Dziatkiewicz v. Maplewood, 115 N.J.L. 37, 178 A. 205. See, also, Philadelphia v. Brabender, 201 Pa. 574, 51 A. 374,58 L.R.A. 220; Goldblatt Bros. Corporation v. East Chicago, Ind.Sup., 6 N.E.2d 331;People v. St. John, 108 Cal.App.Supp., 779, 288 P. 53;San...