285 Mass. 321 | Mass. | 1934
Art. VIII, § 5, of the duly enacted by-laws of the town of Lunenburg provides that “No person under the influence of liquor shall be admitted to, or be per
G. L. (Ter. Ed.) c. 40, § 21, reenacting law which has existed from our earliest history, provides that “Towns may, for the purposes hereinafter named, make such "orders and by-laws, not repugnant to law, as they may judge most conducive to their welfare .... (1) For directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.” Such by-laws must be reasonable, Greene v. Mayor of Fitchburg, 219 Mass. 121, Goldstein v. Conner, 212 Mass. 57, and “not repugnant to law.”
No discussion is needed to show that a prohibition of the presence of intoxicated persons and of intoxicating liquor at public dances, public parks and public places of entertainment is reasonable. Nothing could be more effective in “preserving peace and good order.” The by-law could not properly be ruled to be unreasonable. But a by-law to be valid must also be “not repugnant to law”; and it has been held that where by legislation a subject matter has been fully dealt with, a by-law of a town or city dealing further and otherwise with that subject matter is “repugnant to law” within the meaning of this statute. Cox v. Segee, 206 Mass. 380. Commonwealth v. Turner, 1 Cush. 493. Greene v. Mayor of Fitchburg, 219 Mass. 121. But see Commonwealth v. Ellis, 158 Mass. 555; Commonwealth v. McFarlane, 257
The defendant contends that this by-law attempts to legislate with reference to intoxicating liquor and imposes a penalty for mere possession of such liquor, so that it is clearly repugnant to the law. He misapprehends the scope and application of the by-law. It does not deal with intoxicating liquor or seek to control its keeping or sale. It deals with the maintenance of the peace and good .order in Lunenburg. The situation is comparable to that illustrated in Commonwealth v. Davis, 140 Mass. 485, and S. C. 162 Mass. 510, where an ordinance forbidding public addresses on Boston Common was held valid. Free speech is guaranteed by our Constitution; but the court said the ordinance did not limit free speech; it provided for the convenient use of the Common. The defendant here is fined, not merely for having intoxicating liquor in his possession, but because, although lawfully in possession of it, he, unlawfully, had it in his possession in a public place where its presence might well lead to disorder and from which any one possessing it was barred by a reasonable by-law. There is no double offence from a single action. The mere existence of statutory provision for some matters within the purview of the by-law will not render it invalid as repugnant to law. Commonwealth v. Goodnow, 117 Mass. 114. Commonwealth v. Parks, 155 Mass. 531. Commonwealth v. Hubley, 172 Mass. 58.
The by-law is to be construed so as to make it legal if the context will admit. Ahmedjian v. Erickson, 281 Mass. 6, 11. The words “other public place in this town” need not be accurately defined but they include a locality used as is that disclosed on the present record where persons having intoxicating liquors in their possession are or may well be a probable source of disturbance.
Nothing in our State Constitution forbids the exercise of authority by the Legislature in delegating power to the town to adopt such a by-law. See Commonwealth v. Bennett, 108 Mass. 27.
The rulings of the trial judge were without error.
Exceptions overruled.