Commonwealth v. Morrison

• Decision Date: 21 January 1908
• Parties: COMMONWEALTH v. Hugh J. MORRISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 199

83 N.E. 415

COMMONWEALTH v. Hugh J. MORRISON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 21, 1908

COUNSEL

John R. Murphy and Walter A. Buie, for the defendant.

Michael J. Dwyer, Assistant District Attorney, for the Commonwealth.

OPINION

RUGG J.

The defendant is complained of for obstructing a highway in the city of Boston. The facts are that the defendant kept a lunch wagon upon a public way, known as Adams Square, in the night time. This wagon was a rectangular boxlike structure, placed upon the four-wheel running gear of an ordinary wagon, and was drawn to Adams Square by a single horse harnessed into the wagon shafts in the usual way. The upper structure of the wagon had a door, or entrance, about midway on one side. There were six windows on one side and five on the other, and three on each end. The inside was fitted up with a counter at one end, behind which was a stove and an urn for making coffee, and in front of which were six stools, on which people sat while eating. The rest of the interior was left empty for standing room. Every night, Sundays excepted in the month of December, 1905, at about 6:30 o'clock the wagon was placed in the same spot in Adams Square, and the horse was taken out and led away. About 5 o'clock each morning the horse was brought back, harnessed to the wagon and driven off. During the night the wagon remained in the same place, and was resorted to by people for food. The defendant served various kinds of foods to customers, who entered and ate in the wagon, and to others in the street, who were waited on through the openings in the side.

The defendant attempted to justify his acts by a permit issued to him in 1894 by the board of aldermen of the city of Boston, to stand a wagon in Adams Square between the hours of 6 p. m. and 5 a. m., and under licenses as a hawker and peddler from the street department and the board of health of the city of Boston. We assume that the licenses or permits issued to the defendant as hawker and peddler by the health department and the street department were properly issued pursuant to a legal ordinance covering the subject, and that, notwithstanding considerations hereinafter discussed, it is within the jurisdiction of the city council of the city of Boston to enact limiting ordinances respecting hawkers and peddlers. Com. v. Ellis, 158 Mass. 555, 33 N.E. 651; Com. v. Reid, 175 Mass. 325, 56 N.E. 617. Standing alone, the licenses or permits as hawker and peddler gave the defendant no authority to set up a lunch wagon within the limits of the highway for hours at a time, nor to commit any obstruction in the public street. The character of the business conducted by the defendant, which was always at a fixed place and from a room, which, although set upon wheels, had characteristics of a shop or eating house, does not come within the description of business done by hawkers and peddlers, who, as a matter of common understanding as well as of statutory definition (Rev. Laws, c. 65, § 13) are persons who travel about, either on foot or in wagons, carrying and exposing for sale goods, and generally, though not necessarily, by outcry, sign or advertisement, attracting attention to their wares. Com. v. Ober, 12 Cush. 493; Com. v. Hana, 195 Mass. 262, 81 N.E. 149. The licenses as hawker and peddler are no greater protection to the kind of business which the defendant carried on than they would be to a common victualler. A short answer to the defendant's further contention, that he is protected by the permit from the board of aldermen, is that the board of aldermen had no jurisdiction to grant the permit upon which he relies, even if we assume that the defendant's place of business can be properly comprehended within the generic phrase, carriage, vehicle, wagon, cart or coach. The first statutory provision respecting this subject appears to be in St. 1799, c. 31, section 7, although there were earlier acts respecting hackney carriages. St. 1795, p. 412, c. 51; St. 1796, p. 62, c. 32. This statute imposed a fine for permitting "any Cart, Waggon, Stage or Hack Coach, Stage Waggon or other Carriages, new or old, finished or unfinished" to remain more than one hour in any street, lane or alley in Boston without permission of the surveyors of highways, with a provision, manifestly intended for the protection of country folk, that no prosecution should be commenced "against any Driver of any Cart or Waggon coming from the country" unless specially directed. This section was repealed by St. 1847, c. 224, section 3, other sections of which conferred upon the mayor and aldermen of cities general power for the regulation of all sorts of carriages and vehicles. St. 1878, c. 244, authorized the appointment of a board of police commissioners by the mayor for the city of Boston, and empowered the city council to confer upon such board all the powers possessed by the board of aldermen "in relation to licensing, regulating and restraining, * * * hawkers and peddlers, carriages, wagons and other vehicles." Acting apparently upon the authority conferred by this section, c. 24, section 3, of the Revised Ordinances of the city of Boston of 1882, being the eighth revision, provided that the board of police commissioners "shall have and exercise all the powers conferred by the statutes of the Commonwealth and the ordinances of the city upon the board of aldermen or upon the mayor and aldermen, in relation to licensing, regulating, and restraining * * * hawkers and peddlers, carriages, wagons and other vehicles." So far as this subject is concerned, substantially the same provision is contained in c. 26, section 1, of the Revised Ordinances of 1885, being the ninth revision. By St. 1885, c. 323, a board of police was created for the city of Boston to be appointed by the Governor of the Commonwealth. Section 2 of this act conferred upon the board of police "all the powers now vested in the board of police commissioners in said city of Boston by the statutes of the Commonwealth or by the ordinances, by-laws, rules and regulations of said city," with exceptions not here material. See St. 1906, c. 291, §§ 4, 10. These provisions of the statutes and ordinances were in force during the period covered by the complaint. It is clear that, if the defendant was either a hawker or a peddler or operating a carriage, wagon or other vehicle, he could justify his actions only by showing a license from the board of police of Boston. This he did not have and his justification fails.

But the ruling of the court below was correct upon broader grounds. The device, which the defendant maintained, although mounted upon wheels, was in fact a small room used for an eating house and kept constantly at one place in the street for over ten consecutive hours. During this time no horse was attached and no use was at any time made of the wheels except to drag the cart to and from its place in the public way. The public secure by the location of a highway an easement of passage with all the powers and privileges which are necessarily implied as incidental to its exercise. The easement is coextensive with the limits of the highway. The fee of the land remains in the landowner, who may make any use of it not inconsistent with the paramount right of the public. Como v. Worcester, 177 Mass. 543, 59 N.E. 444. The easement acquired by the public includes every reasonable means of transportation for persons and commodities, and of transmission of intelligence, which the advance of civilization may render suitable for a highway. Under this description, gas and water pipes, sewers, telephone, telegraph, electric light and power poles, wires and conduits, electric and horse railways, the Boston subway and private railroads...