Haberlil v. City of Boston

• Decision Date: 28 February 1906
• Citation: 190 Mass. 358,76 N.E. 907
• Parties: HABERLIL v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 358

76 N.E. 907

HABERLIL v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1906

COUNSEL

Jas E. Cotter and Jos. P. Fagan, for plaintiff.

Arthur L. Spring, Asst. Corp. Counsel, for defendant.

OPINION

HAMMOND J.

The first question is whether the voting booth was lawfully in the public street. It was a one-story structure, 25 feet long, about 10 feet wide, and it was placed within the traveled part of the street; one side of it resting upon the curbstone of the sidewalk, and the remainder extending out into the street. The defendant relies upon Rev. Laws, c. 11 § 186, which, so far as material, reads as follows: 'The aldermen in cities and the selectmen of every town divided into voting precincts shall, thirty days at least before the annual state or city election and ten days at least before any special election of a state or city officer therein, designate the polling place for each voting precinct and shall cause it to be suitably fitted up and prepared therefor. It shall be in a public, orderly and convenient portion of the precinct; but if no such polling place can be had within the precinct, they may designate a polling place in an adjoining precinct. No building or portion of a building shall be designated or used as a polling place in which intoxicating liquor has been sold within the thirty days preceding the election.' This is a general law applicable throughout the commonwealth, except that in Boston this power is vested in the board of election commissioners of that city, instead of the mayor and aldermen.

In construing this statute, it is to be noted that there is no language explicitly providing that a polling place may be located in a street. The natural and easy reading of the language is that this polling place is to be located in a building, and consequently in a place where buildings generally are located, namely, not in the traveled part of a street, but outside the limits of the street, or at least outside the part worked for public travel. It is to be further noted that the possibility is contemplated that the officers charged with this duty may be unable to find in a precinct a suitable polling place, and in such case a polling place may be designated in an adjoining precinct. This possibility scarcely could arise if it were contemplated that the polling place could be located upon the traveled part of a street or highway. The...