Commonwealth v. McCafferty

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, C.J.
• Citation: Commonwealth v. McCafferty, 145 Mass. 384, 14 N. E. 451 (Mass. 1888)
• Decision Date: 02 January 1888
• Parties: COMMONWEALTH v. MCCAFFERTY.

145 Mass. 384

14 N.E. 451

COMMONWEALTH v. MCCAFFERTY.

Supreme Judicial Court of Massachusetts, Essex.

January 2, 1888

COUNSEL

John R. Baldwin, for defendant.

Defendant maintains that the ordinance upon which this complaint is founded is unreasonable, inasmuch as it prohibits any mark of designation being carried by a person, as in many ways are done, without any legal injury to anybody. Among instances which may be cited of violations of this ordinance are those of hackmen, people in processions, or anybody carrying a badge. Such a prohibition is unreasonable, as being in derogation of private rights, the exercise of which does no legal injury to anybody. The ordinance, not having been published, has no legal effect. "All by-laws made by a town shall be published in one or more newspapers printed in the county where the town is situated." Pub.St. c. 27, § 23; Gen.St. c. 18, § 16; Rev.St. c. 15, § 15. This provision is applicable to the ordinance of cities. Pub.St. c. 28, § 2; Id. c. 3, § 3; Id. c. 15, § 23. If notice of the adoption of a by-law must be published before it can become operative, how much stronger the reason for the publication of a city ordinance. In a town, all members of the corporation participate in its meetings; in the city ordinances are adopted by elective agents. In the town, a large number participate in the enactment of by-laws; in the city, comparatively few. The complaint is founded upon a police ordinance; not a property ordinance. The purpose of publication is to give notice. Horr & Bemis, Municipal Police Ordinances, 49. If the court shall give to the terms "show-board, placard, or sign" a more limited interpretation than that of the original meaning, then defendant maintains that his acts would not be prohibited by the ordinance. The defendant wore the oil-cloth upon which the words were printed as a garment for a special purpose. Peculiar dresses and other garments are frequently worn for special purposes. This oil-cloth was worn for a special purpose, i.e., to request lasters to keep away from P.P Sherry's. A sign or placard might have obstructed a right of way to passengers on the sidewalk; this oil-cloth did not. Even if it did, by causing a collection of people to gather the crowds thus collected are prohibted by another ordinance of the city of Lynn. Such an instance is amply provided for. Statutes & Ordinances of Lynn, 300. There was no evidence tending to show the collection of crowds in consequence of the acts of the defendant. The evidence, offered to establish the ordinance in question, was not the best evidence.

A.J Waterman, Atty. Gen., for the Commonwealth.

The testimony of the city clerk as to the records was not controlled, and was sufficient proof of law. There is no law of which this court can herein take cognizance, requiring any publication of the ordinance, further than what was necessary for its promulgation; and the law was sufficiently promulgated when it was signed, and became a part of the public records of this city. See 1 Bl.Comm. c. 6. In Com. v. Brooks, 109 Mass. 355, a case involving the same charter provision, it was held that an ordinance would take effect from the passage, if no time was limited, and there was nothing in the ordinance to show that it was not intended to take effect immediately. See, also, Com. v. Davis, 140 Mass. 485, 4 N.E. 577. The ordinance was clearly within the legislative powers of the city council respecting police matters. There is a presumption that the by-law is valid; the burden is with the defendant to prove the contrary, (Com. v. Patch, 97 Mass. 222;) and the authority of the court to declare a by-law void should be exercised with caution, (Com. v. Robertson, 5 Cush. 438.) It does not fatally militate against the validity of a by-law that, in some instances, the offense, in the manner in which it is committed, is almost wholly devoid of the evil against which the law is directed; because, of necessity, the law must be general, and the ordinance may be fully justified in its application to the usual cases arising within the class of which the particular case is an instance. For example, there is a wholesome law against the cutting down of shade trees on highways. Should the law be held void for unreasonableness because the tree involved in a particular case happened to be unnecessary for shade in the place where it stood? Within the ancient offense of nuisance was the exhibition of caricatures which cause crowds to collect and obstruct a way. In Rex v. Carlisle, 6 Car. & P. 636, the question is fully discussed. See, also, 2 Dill.Mun.Corp. § 660. Anything on a street which naturally tends to create a nuisance may be the subject of prohibition by special ordinance. In the case at bar, it is not that the...