59 Mass. 438 - Commonwealth v. Robertson — 59 Mass. 438

Commonwealth vs. Robert Robertson. A by-law of a city having provided, in one section, that no carriage should be allowed to stand in any street more than fifteen minutes; and in another, that at any theatre or place of public entertainment, where hackney-carriages attend for passengers, the police authorities might give directions respecting the standing of such carnages, while waiting for their passengers; and the police authorities having prescribed certain regulations for the standing of carriages at a particular place of public entertainment, and among others, that a space of thirty-five feet in front of the door thereof should be kept open and unincumbered; it was held, that the driver of a hackney-carriage, who had placed the same on the space aforesaid, and refused to remove therefrom, when directed so to do by the police authorities, for more than fifteen minutes, was guilty of an offence and liable to be prosecuted only under the last and not under the first-named section. The defendant having been convicted in the police court of the city of Boston, on a complaint charging him with a violation of the rules established by the mayor and aldermen for the regulation of hackney-coaches and other vehicles, appealed to the municipal court; and being there tried before Bigelow, J., and convicted, he brought his case to this court by exceptions. The mayor and aldermen, under the authority conferred by the act of 1847, c. 224, adopted a code of regulations or bylaws, on the 1st of October, 1847, relating to hackney and other carriages and vehicles, of which the following are the sixth and seventh sections : — Sect. 6. No owner, driver, or other person, having the care or ordering of any chaise, carryall, hackney-carriage, truck, cart, wagon, handcart, sleigh, sled, hand-sled, or any other vehicle whatsoever, new or old, finished or unfinished, with or without a horse or horses, or other animal or animals, harnessed thereto, shall suffer the same to remain in any street, square, lane, or alley, of this city, more than five minutes, without some proper person to take care of the same, or more than fifteen minutes in any case; and any person so offending shall be liable to a fine of not less than three or more than twenty dollars for each offence. Sect. 7. In any street, or square, where stands are assigned for any vehicles of burden, or at any theatre, museum, or other place of public entertainment, where hackney-carriages attend for passengers, the mayor, or any person or persons by him authorized, may give directions respecting the standing of such carriages, while waiting for their passengers, and the route they shall go when going to or leaving any such place of entertainment; and if any owner, or driver, or other person hay ing the care of such carriages, shall refuse to obey such ord"' ' r directions of the mayor, or other person or persons by him authorized, he or they shall be liable tc a fine of not less than five, nor more than twenty dollars for each offence. The complaint was as follows: — “ That the said Robertson, on the ninth day of November, in the year of our Lord eighteen hundred and forty-nine, at Boston aforesaid, with force and arms, did have the care and ordering of a certain hackney-carriage, having two horses harnessed thereto, and did suffer the said carriage to remain in Tremont.street, the same being a public street of said city, for more than fifteen minutes, without license from the mayor and aldermen of said city so to do; against the peace of the commonwealth, and the form of the statute of the commonwealth and the by-law of said city in such case made and provided.” It was in evidence, on the part of the prosecution, that the public authorities of the city, in pursuance of the seventh section above cited, had arranged for the standing of vehicles, to wait for passengers coming out of the Boston museum, which was a place of public amusement; that such vehicles were disposed by the police along the sides of the street, leaving a space of about thirty-five feet in front of the doors of the museum, where the carriages might drive up, and take their passengers as they came out of the door, and where, by the regulations of the police authority, no vehicles were allowed to stand; that between the hours of half-past eight and ten o’clock in the evening of the 9th of November, 1849, the defendant drove his hackney-coach on to this space, occupying about twenty-one feet of it, and on being ordered by the police officers to remove, refused to do so, but remained there with his carriage and horses for an hour and a half. The defendant requested the presiding judge to instruct the jury, that the act done by him, if in contravention of either of the sections above mentioned, was within the seventh and not within the sixth, upon which the complaint was founded and therefore would not support the charge in the complaint; but the judge instructed the jury otherwise, who thereupon returned a verdict of guilty, and the defendant excepted. F. Webster, for the defendant. P. W Chandler, city-solicitor, for the commonwealth. In the revised ordinances, published in 1850, the sixth section, as above, is § 50 of the tules and orders of the mayor and aldermen relating to carriages. The only changes are, that the time allowed is enlarged from fifteen to twenty minutes, and an exception is made in favor of the carriages of physicians while visiting the sick. The seventh section, as revised, is § 14, with no other change, than leaving out the words, “ where stands are assigned for any vehicles of burden.” — Dewey, J. (majority) Dewey, J. Under the provisions of the statute of 1847, c. 224, the mayor and aldermen of the city of Boston adopted certain rules and orders for the due regulation of hackney-coaches and other vehicles. Those materially bearing upon the present question are designated as regulations numbered six and seven in the order adopted on the 1st of October, 1847, and are as follows. [Here the judge read the sections printed on pages 438,4391] The questions arising in the present case are: 1st, Whether the facts proved bring it within the sixth section of the. ordinance above recited; 2d, Whether that ordinance or by-law is a valid one. It is contended, on the part of the defendant, that the offence here complained of, if any were committed, was one arising under the seventh section, whereas the complaint alleges an offence in violation of the sixth. Upon a careful examination of this complaint, we are satisfied, that it must be taken to be a complaint for a violation of the sixth section. It seems to have been so treated by the municipal court, and the instructions under which the verdict was returned assumed such to be the case. We are then brought to the inquiry, whether the facts proved sustain the allegations thus set forth under the sixth section. On the part of the prosecution, it is insisted, that the sixth regulation, embracing all the streets, lanes, squares, and alleys, also includes all such portions of the streets, squares, &c., contiguous to any theatre, museum, or other place of public amusement, where hackney-carriages attend for passengers, so far forth, that the violation of a regulation by the mayor, that a space of thirty-five feet in front of the doors of the museum should be kept open and unincumbered by any hackney-coaches standing there, would, if the coach remained there more than fifteen minutes, be an offence in violation of the sixth section. On the other hand, on the part of the defendant, it is insisted, that these regulations, as prescribed in sections six and seven, are distinct in their character; each embracing its own peculiar class of cases, and excluding all liability for an offence in violation of the one, from any forfeiture or penalty arising under the other. In the absence of any such provision, as is contained in the seventh section, it might be very properly urged, that the facts in the present case constitute an offence within the sixth section, but we are not at liberty thus to consider the question. The mayor and aldermen have thought proper to distinguish the cases of vehicles having stands assigned for them, and hackney-carriages attending for passengers at any theatre, museum, or place of public entertainment, by making special regulations for such vehicles and for hackney-carriages. From the nature of the case, we should have expected particular provision to be made for such cases. The period of fifteen minutes, allowed for standing in the public streets, could not be supposed to be a limit to be applied to the hackney-coaches attending at the museum or a theatre, waiting for their passengers ; no precise time being fixed for the termination of such theatrical exhibitions, and from the very nature of the case not to be expected. An exact compliance with such a rule, limiting the remaining of carriages to a period of fifteen minutes, would be hardly practicable. It seems to us, that the true state of the case was foreseen by the mayor and aider-men, and was fully apprehended by them, when they adopted these regulations ; and that with a view to meet the exigencies of the case, they established the seventh section, contemplating the use of the public streets, in front of a theatre or place of public entertainment, as one requiring special provisions; that as to such places, the by-laws give the mayor authority to make the needful regulations, and provide a penalty for the neglect to observe them ; that this power was duly exercised by the mayor, in requiring thirty-five feet in front of the door of the museum to be kept open and unincumbered, except for the mere passing of coaches to the door to take up passengers and carry them from the theatre. We are of opinion, that the seventh section was intended to furnish the entire rule, as to the standing of carriages at places of public amusement, and that for all offences in reference to such carriages, the complaint should be instituted under that section exclusively. The present case, as disclosed upon the evidence, being properly embraced within the seventh section, and the complaint against the defendant being for a violation of the sixth section, the complaint is not supported by the evidence; and the instructions of the presiding judge are therefore erroneous, and the exceptions taken thereto must be sustained. This view of the case makes it unnecessary to consider particularly the objection taken to the sixth section, namely, that it is an unreasonable by-law, and therefore void. This court doubtless have the power to deny effect to a by-law obnoxious to such an objection. It is however a power to be cautiously exercised, and in a question like the present, it is the more embarrassing, as the length of time, which ought to be allowed to vehicles to remain in the street, is, to a great extent, a practical question, upon which the mayor and aldermen can judge better than the members of this court. But we forbear to express any opinion upon that point, for the reasons already assigned. Verdict set aside and new trial grcmted.