Greene v. Cook

Decision Date24 October 1914
Citation106 N.E. 573,219 Mass. 121
PartiesGREENE v. COOK et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

The ordinance referred to in the opinion was as follows:

An ordinance in relation to the sale of ice.

Be it ordained by the city council of the city of Fitchburg, as follows:

Section 1. No person, firm or corporation, or any agent thereof shall sell at retail, or expose for sale, or hawk or peddle any ice within the limits of the city of Fitchburg, without having first obtained a license therefor, from the board of mayor and aldermen.

Section 2. Every application for such license shall be made to the board of mayor and aldermen in writing, and such applicant shall answer under oath and in writing if requested, such questions as said board or any committee thereof may deem necessary to secure the protection of the public health.

Section 3. No license to any applicant therefor shall be granted by the board of mayor and aldermen until said board determines that the applicant is properly qualified to engage in said business, that the health of the community will be protected and that ice will be sold at fair and reasonable prices.

Section 4. Any person, firm or corporation, or any agent thereof receiving such license and engaged in the business of selling ice at retail, who refuses to sell from any place or vehicle engaged in the regular distribution of ice at retail a piece of ice at a fair value thereof to any person other than an ice dealer, shall if such person tenders in payment therefor the amount of five cents or any multiple thereof of not more than fifty cents, in addition to any penalty now fixed by law, may in the discretion of the mayor and board of aldermen, forfeit said license, and the same may be revoked and made void.

Section 5. Every application made for a license as aforesaid together with the answers of the applicant under oath and in writing, if such license is granted, shall be filed in the office of the city clerk, and upon request shall be opened for public inspection.

Section 6. Licenses shall be granted in January of each year for the term of one year, and may be granted at any time during the year for the unexpired period thereof, and a license fee for the sum of one dollar for each license shall be paid.

Section 7. Any person, firm or corporation, or any agent thereof, who sells at retail, exposes for sale, hawks or peddles ice within the limits of the city of Fitchburg without having first obtained such license, shall be liable to a fine not exceeding twenty dollars for each offence.

Section 8. This ordinance shall take effect upon the first day of January, 1914.

COUNSEL

Gardner K. Hudson, of Fitchburg, and Loring P. Sears, for plaintiff.

J. H. McMahon, of Fitchburg, for respondents.

OPINION

SHELDON J.

The main question raised in this case is as to the validity of the ordinance of the city of Fitchburg. That depends upon the questions whether it is authorized by statute and whether it is reasonable. Commonwealth v. Crowninshield, 187 Mass. 221, 224, 72 N.E. 963, 68 L. R. A. 245.

By the charter of the city of Fitchburg, St. 1872, c. 81, § 24, the city council was given the power to 'make by-laws, with suitable penalties, for the inspection, survey, measurement and sale' of certain specified articles which do not include ice (Commonwealth v. Reid, 175 Mass. 325, 56 N.E. 617), and also to 'make all such salutary and needful by-laws as towns, by the laws of this commonwealth, have power to make and establish, and to annex penalties, not exceeding twenty dollars, for the breach thereof.' It is provided also by R. L. c. 26, § 18, that ' a city may establish ordinances to secure the inspection of ice sold within its limits and to prevent the sale of impure ice, and may affix penalties of not more than twenty dollars for each violation thereof.' If these statutes stood alone, there would be force in the defendant's contention that this city had the power not only to regulate by suitable by-laws the sale of ice within its limits, but as a means therefor to forbid any person to sell at retail or to hawk or peddle ice within those limits without first having obtained a license therefor from the city authorities. Commonwealth v. Stodder, 2 Cush. 562, 48 Am. Dec. 679; Commonwealth v. Plaisted, 148 Mass. 375, 19 N.E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566.

But it was enacted by R. L. c. 65, § 15, that:

'Hawkers and peddlers may sell without a license books, newspapers, pamphlets, fuel, fruits, provisions, ice, live animals, brooms, agricultural implements, hand tools used in making boots and shoes, agricultural products of the United States, and the products of their own labor or of the labor of their families if such sale is not in violation of any ordinance or by-laws of a city or town. Cities and towns may, by ordinance or by-law not inconsistent with the provisions of this chapter, regulate the sale and exposing for sale by hawkers and peddlers of said articles, and may affix penalties for the violation thereof.'

After the decision of Commonwealth v. Caldwell, 190 Mass. 355, 76 N.E. 955, 112 Am. St. Rep. 334, 5 Ann. Cas. 879, this section was modified to read as follows:

'Hawkers and peddlers may sell without a license books, newspapers, pamphlets, fuel, provisions, ice, live animals, brooms, agricultural implements, hand tools used in making boots and shoes, and the products of their own labor or of the labor of their families, including among such products fruits and agricultural products, if such sale is not made in violation of an ordinance or by-law of the city or town. Cities and towns may by ordinance or by-law not inconsistent with the provisions of this chapter regulate the sale and exposing for sale by hawkers and peddlers of said articles, and may affix penalties for the violation of such regulations; and may require hawkers and peddlers of fruit and vegetables to be licensed, provided that the license fee does not exceed that prescribed by section nineteen of chapter sixty-five of the Revised Laws for a license embracing the same territorial limits. But a person engaged in the pursuit of agriculture who peddles fruits and vegetables shall not be deemed a hawker or peddler under the provisions of this chapter.' St. 1906, c. 345.

Whatever doubt might have been entertained before the enactment of the last cited statute, it is now plain that hawkers and peddlers may sell ice without a license; for this is the express enactment. The requirement that their sales shall not be 'made in violation of an ordinance or by-law of the city or town' is given ample scope when construed to require compliance with whatever ordinances or by-laws may have been passed for the protection of the public health or under the authority of R. L. c. 26, § 18, already cited. The next provision of the statute, that cities and towns may require hawkers and peddlers of fruits and vegetables to be licensed indicates plainly the legislative intention that under the guise of regulating the sale of the other articles mentioned, including ice, no ordinance or by-law should require the obtaining of a license therefor. It follows therefore that the first section of this ordinance, so far as it forbids the hawking or peddling of ice...

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