Commonwealth v. Plaisted

• Decision Date: 04 January 1889
• Parties: COMMONWEALTH v. PLAISTED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 375
19 N.E. 224

COMMONWEALTH
v.
PLAISTED.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1889.

[19 N.E. 225]

Report from [148 Mass. 375]superior court, Suffolk county; JOHN W. HAMMOND, Judge.

Complaint against defendant, George Plaisted, charging that defendant, “on the 5th day of October, 1887, at Boston, in a public street of said city, *** did then and there perform on a certain musical instrument, to-wit, a cornet; he, the said Plaisted, not being licensed by the board of police for said city so then and there to do.” It appeared at the trial that the defendant, on the day alleged, at about 7:30 in the evening, was on Washington street, a public street of said city, and was part of a procession or parade of the Salvation Army, so called, and was engaged in playing upon a cornet. There was no disturbance or breach of the peace. The defendant offered to show that the organization called the “Salvation Army” is a regular religious and charitable organization, and that the parade in question was one in which defendant took part as a matter of religious worship only. The court excluded the evidence, the jury returned a verdict of guilty, and the presiding judge reported the case to the supreme judicial court.

148 Mass. 380]G.A.A. Pevey, for defendant.

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

MORTON, C.J.

The defendant contends that the rules of the board of police which he is charged with having violated are not within the terms of the authority conferred upon that board. But we think this ground of objection cannot be maintained. The statute of 1885, c. 323, § 2, conferred upon and vested in the board of police all the power theretofore vested in the board of police commissioners, except as otherwise therein provided. The statute of 1878, c. 244, established the board of police commissioners, and in section 2, after mentioning other powers, proceeded to enact that “said board may also be empowered by the city council to exercise all or any of the powers conferred by the statutes of the commonwealth upon the board of aldermen, the city counsel, of the city of Boston, in relation to licensing, regulating, and restraining theatrical exhibitions, *** itinerant musicians,” etc. By Pub.St. c. 53, § 16, “the mayor and aldermen of a city may adopt rules and orders not inconsistent with law for the regulation and control of persons who frequent the streets and public places therein, playing on hand-organs or other musical instruments, beating drums, blowing trumpets, *** with penalties for the violation thereof, not exceeding twenty dollars for each offense.” This enactment was derived from St.1875, c. 136, § 2, which in its turn was founded on St.1869, c. 301, § 2. The words “mayor and aldermen” in the statute above quoted, when applied to Boston, mean “board of aldermen.” Gen.St. c. 19, § 17.

It has been suggested that Pub.St. c. 53, § 16, were not designed to be applicable to the city of Boston; but we see no reason for excluding Boston from this salutary...