Commonwealth v. Plaisted

• Decision Date: 04 January 1889
• Citation: 19 N.E. 224,148 Mass. 375
• 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

January 4, 1889

HEADNOTES

COUNSEL

G.A.A Pevey, for defendant.

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

OPINION

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 provision, and we have no doubt that under the various statutes cited the board of police may be empowered to regulate and restrain itinerant musicians to the same extent that the board of police commissioners might have been. By the revised ordinances of 1885 of the city of Boston, c. 26, § 1, it was provided that "the board of police 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 *** itinerant musicians." It thus appears that the board of police, according to the terms of the statutes and ordinances, have the authority to adopt rules for regulating and restraining itinerant musicians in the streets and public places of Boston.

It is objected that the defendant was not an itinerant musician, within the meaning of the rule of the board of police. But the general phrase "itinerant musician" includes the defendant, and the exceptions contained in the rule are sufficient to show that no other exception can fairly be implied which would take him out of its operation.

It is also objected that the defendant's act of playing the cornet in the parade in the street was done as a matter of religious worship only. But this defense cannot avail to protect him from the consequences of an act which is made subject to a penalty under the law. Reynolds v. U.S., 98 U.S. 145, 161; State v. White, (N.H.) 5 Atl.Rep. 828. The provisions of the constitution which are relied on, securing freedom of religious worship, were not designed to prevent the adoption of reasonable rules and regulations for the use of streets and public places; and a religious body, however earnest and sincere, cannot avail itself of these provisions, as an authority to take possession of a street in a city, in violation of such rules, for the purpose of public worship therein. The fact that there is no actual disturbance or breach of the peace on the particular occasion is immaterial. State v. White, ubi supra.

It is further urged by the defendant that the rules are unreasonable and invalid; that, under the guise of regulating, they virtually prohibit; and that the power of requiring the taking out of a license and paying a license fee is not included in the power of regulation. It is, however, to be borne in mind that these rules do not restrict any one in the ordinary use of his own property, but merely affect the use which may be made of the streets and public places of the city. Nor is the reasonableness of the rules to be tested by their possible application to extreme cases, as, for instance, singing or playing (in a low tone, not intended to be heard by others) for a short time in a street or place not occupied with dwellings. No police rules or regulations are to be tested in this manner, and, if such a case were to present itself, perhaps the rule might by construction not be deemed to include it. However that may be, we are to look at the rule more generally. The validity of rules and regulations quite as broad and sweeping as this, in reference to the use of streets in cities, has often been upheld. Com. v. Worcester, 3 Pick. 462; In re Vandine, 6 Pick. 187; Pedrick v. Bailey, 12 Gray, 161; Com. v. Bean, 14 Gray, 52; Com. v. Curtis, 9 Allen, 266; Com. v. McCafferty, 145 Mass. 384, 14 N.E. 451. Under a power to regulate, the requirement to take out a license is free from legal objection, (Com. v. Stodder, 2 Cush. 562, 573; Pedrick v. Bailey, 12 Gray, 161; In re Vandine, 6 Pick. 187; In re Nightingale, 11 Pick. 168; Com. v. Brooks, 109 Mass. 355;) and, where a license is lawfully required, a small fee may be imposed, not designed for revenue, but to cover reasonable expenses incident to the enforcement of the rules, (Com. v. Stodder, 2 Cush. 562; Welch v. Hotchkiss, 39 Conn. 140; Cooley, Const.Lim. 201, note; 1 Dill.Mun.Corp. 3d Ed. § 357.) The rules are binding upon all persons without notice. Heland v. Lowell, 3 Allen, 407; In re Vandine, 6 Pick. 189; 1 Dill.Mun.Corp. (3d Ed.) §§ 355, 356.

The defendant contends that the power to make the rules in question could not be delegated to the board of police. The decisions cited in support of this argument (Day v. Green, 4 Cush. 433; Lowell v. Simpson, 10 Allen, 89) are merely to the effect that, where a city ordinance gives power to the mayor and aldermen to grant a license to move a building through the streets, the aldermen cannot delegate this power to the mayor alone. No authority has been cited, and after some examination we have found none, which holds that the legislature cannot authorize a particular board of officers, who have charge of the whole or a portion of the affairs of a city, to make reasonable police rules and regulations which shall be binding upon the people, and with penalties imposed for a violation of them. It could not at this day be contended that such power cannot be intrusted by the legislature to cities and towns, or to the mayor and aldermen of a city and the selectmen of a town, as representing the municipality. Heland v. Lowell, 3 Allen, 407; 1 Dill.Mun.Corp. (3d Ed.) § 308. And in this commonwealth it has long been the custom to vest similar powers in boards of health of cities and towns, and such delegation of authority has always been recognized as valid. St.1816, c. 44, § 3; Rev.St. c. 21, §§ 1, 5, 6; Gen.St. c. 26, §§ 1, 5; Pub.St. c. 80, §§ 1, 4, 8, 18; Com. v. Young, 135 Mass. 526; Sawyer v. Board of Health, 125 Mass. 182, 196; Taunton v. Taylor, 116 Mass. 254, 260. Similar power was also in 1860 given to the cattle commissioners. St.1860, c. 221, §§ 2, 6, 10; Pub.St. c. 90, §§ 13, 16, 19.

In the present case, as has already been...