Commonwealth v. McFarlane

• Decision Date: 24 November 1926
• Citation: 154 N.E. 83,257 Mass. 530
• Parties: COMMONWEALTH v. McFARLANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 530

154 N.E. 83

COMMONWEALTH

v.McFARLANE.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 24, 1926.

Exceptions from Superior Criminal Court, Middlesex County; A. F. Hayden, Judge.

Percival C. McFarlane was convicted of operating an automobile on a public highway and sounding a horn operated by means of compressed gas from the exhaust, said automobile being equipped also with an electric horn, and he excepts. Exceptions sustained.

1. Automobiles k5(2)-Registrar presumed not vested with discretion to make regulation for operation of automobiles of something already regulated by statute (G. L. c. 90, s 31, and section 7, as amended by St. 1923, c. 335).

In delegating to registrar, under G. L. c. 90, s 31, power to make rules and regulations in use and operation of motor vehicles, it is presumed that Legislature did not vest in him discretionary power to regulate something regulated by section 7, as amended by St. 1923, c. 335.

2. Automobiles k5(2)-Regulation of registrar that no signal device on automobile should be operated by compressed gas held invalid (G. L. c. 90, s 31, and section 7, as amended by St. 1923, c. 335).

Since G. L. c. 90, s 7, as amended by St. 1923, c. 335, provides that motor vehicles shall be provided with suitable bell, horn, or other means of signal, regulation of registrar, under section 31, that no bell, horn, or other means of signaling shall be operated by means of compressed gas from engine or exhaust, held invalid.A. K. Reading, Dist. Atty., and R. W. Stearns, Asst. Dist. Atty., both of Boston, for the Commonwealth.

C. W. Bond, of Boston, for defendant.

CROSBY, J.

The complaint upon which the defendant was tried and found guilty charged that he ‘did operate an automobile on a public way in said Arlington and while so operating said automobile did sound a horn operated by means of compressed gas from the exhaust of the engine of said automobile, said automobile being equipped also with an electric driven horn in working condition.’

G. L. c. 90, § 7, as amended by St. 1923, c. 335, provides in part as follows:

‘Every motor vehicle * * * shall be provided with a muffler or other suitable device to prevent unnecessary noise and with a suitable bell, horn or other means of signaling. * * *’

By section 31:

‘The registrar may prepare rules and regulations governing the use and operationof motor vehicles * * * and may alter, rescind or add to any rules and regulations previously made by him. * * *’

Under section 31 the registrar prepared and approved the following regulation:

‘No bell, horn or other means of signaling, as required by section 7 of chapter 90 of the General Laws as amended, shall be operated by means of compressed gas from the engine or its exhaust.’

[1] The question is whether the registrar had power to prepare and approve this regulation. It is plain that he was without lawful authority to approve any rule or regulation which would be in conflict...