298 Mass. 417 | Mass. | 1937
G. L. (Ter. Ed.) c. 85, § 2, provides: “. . . Said department [hf public works], after a public hearing
Purporting to act under the statute quoted, the department of public works, with the approval of the Governor and Council and after a public hearing, made rules and regulations requiring the equipment of certain motor vehicles with signals, visible from the front and rear, indicating any proposed change of direction. Only the most recent form of these rules and regulations, that adopted by the department on August 26, 1936, and approved by the Governor and Council on November 12, 1936, is material, for that was a substitute for earlier rules.
Paragraph (a) of § 12 of these rules and regulations is as follows: “Any signal herein required shall be given sufficient time in advance of the movement indicated to give ample warning to any person who may be affected by- said movement, and shall be given either by means of the hand and arm in the manner specified [in paragraph (b) of the rule], or by a suitable mechanical or electrical device, or devices, approved by the department; but when a vehicle is so constructed or loaded that the distance from the center
The plaintiff is the owner of seven vehicles which, under the terms of § 12 (a), must be equipped with mechanical or electrical signalling devices. He brought this bill in equity to restrain the enforcement of the rule. The case was set down for hearing on bill and answer (Equity Rule 12 (1926), 252 Mass. 604), and was reserved for the full court without decision. Therefore we must accept as true all facts alleged in the answer, and all those alleged in the bill and not denied or contradicted in the answer. Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp. 282 Mass. 367, 369. Hallett v. Moore, 282 Mass. 380, 390. Tansey v. McDonnell, 142 Mass. 220, 221. Rubenstein v. Lottow, 220 Mass. 156, 161.
The plaintiff contends that the department of public works could not be authorized to make such a rule without an ■ unconstitutional delegation of legislative power. But before that question is reached, we must consider whether the rule is within the power granted by the terms of the statute.
The decisive statutory words are these: “rules and regulations to direct, govern and restrict the movement of vehicles on all State highways.” The rule-making power does not extend to the vehicles themselves. It is limited to the “movement” of vehicles on State highways, and the enforcement of the provision requiring a stop before entering a “through way.” It does not extend to the movement of vehicles on any other ways. The rule in question
In our opinion the rule in question does not direct, govern or restrict the “movement” of vehicles on State highways, within the legislative grant of rule-making power. It relates to the motor vehicle itself and its equipment, not to its “movement.” Its adoption was beyond the power delegated to the department. The jurisdiction in equity is not challenged. The.plaintiff is entitled to relief against any attempt to enforce the rule in question. Shuman v. Gilbert, 229 Mass. 225. Commonwealth v. Norman, 249 Mass. 123, 130, 131. Davis v. Board of Registration in Medicine, 251 Mass. 283, 284. Morley v. Police Commissioner of Boston, 261 Mass. 269, 278. Harmon v. Police Commissioner of Boston, 274 Mass. 56. This result is supported by the decision in Commonwealth v. McFarlane, 257 Mass. 530, which is closely analogous to the present case.
Decree for plaintiff.
Memorandum.
On the first day of November, 1937, the Honorable Edward Peter Pierce resigned the office of a Justice of this court which he had held since December 9, 1914.