187 Mass. 221 | Mass. | 1905
The defendant was found guilty of violating a rule of the board of park commissioners of the city of Boston, which provides that “No person shall ride or drive in Commonwealth Avenue at a rate of speed exceeding eight miles an hour.” At the trial it appeared that the defendant, on November 30, 1903, was running an automobile at a rate of speed exceeding eight miles an hour, in Commonwealth Avenue between Exeter Street and Fairfield Street. Many objections were raised in the court below, and come before us on the defendant’s exceptions. So much of Commonwealth Avenue as lies between Arlington Street and the intersection of that avenue with Beacon Street was taken for park purposes by the board of park commissioners on June 29, 1894.
1. It is contended that the board of park commissioners never acquired any jurisdiction over the part of Commonwealth Avenue where the offence was committed. This depends on the construction to be given to the St. of 1893, c. 300, § 1. This
It appears that the public authorities having control of Commonwealth Avenue assented to the selection and taking of the portion of the avenue taken, and that the consent in writing of the owners of a majority of the frontage of the lots and lands abutting on the avenue has been obtained. The contention of the defendant is that as the board of park commissioners has no control over the Public Garden, which abuts on Arlington Street for the entire length of that street, it could not take the avenue for the purpose of connecting the Public Garden with the Back Bay Fens. But we are of opinion that the language of the statute is broader than this. The board of park commissioners is expressly given the power “ to connect any public park, boulevard or driveway under its control,” (in this case the Back Bay Fens,) “ with any part of any city or town in this Commonwealth wherein it has jurisdiction, by selecting and taking any connecting street or streets, or part thereof, leading to such park.” The object of the statute was to give a board of park commissioners having jurisdiction of a park in any city or town power to take, under the conditions above set forth, any street connecting with that park in the same city or town, and was not limited to the taking of a street connecting two parks.
The view which we have adopted is in accordance with that
2. It is next contended that,-if the park commissioners had jurisdiction over that part of Commonwealth Avenue where the offence was committed, their jurisdiction was limited to acts of maintenance and management, and did not embrace the power to pass the rule in question. But § 3 of the St. of 1893, c. 300, reads as follows: “ Such boards of park commissioners shall have the same power and control over the streets or parts of streets taken under this act as are or may be by law vested in them concerning the parks, boulevards or driveways under their control.”
To ascertain the power of the board we turn to the St. of 1875, c. 185, § 3, which not only gave the board power to take land for parks, and “ to lay out, improve, govern and regulate ” the same, but also “ to make rules for the use and government thereof, and for breaches of such rules to affix penalties not exceeding twenty dollars for one offence.” Power is also given to employ a police force.
We cannot doubt the power of the board of park commissioners, under the statutes cited, to regulate the speed at which a person shall “ride or drive” in a park or in a street which is within 'the jurisdiction of such commissioners. In Commonwealth v. Abrahams, 156 Mass. 57, where a rule made by the park commissioners under the St. of 1875, c. 185, § 3, was held to be valid, it was said in the opinion of the court: “ The parks of Boston are designed for the use of the public generally, and whether any park or a part of any park can be temporarily set aside for the use of a portion of the public is for the park commissioners to decide, in the exercise of their discretion.”
The general question which arises where a by-law or ordinance of a city, or a rule of a board of park commissioners is concerned is whether it is authorized by a statute, and whether it is reasonable. See Commonwealth v. Stodder, 2 Cush. 562, 570. The rule in question was authorized by statute and was reasonable.
3. The next contention is that if the board of park commissioners had ’power to pass rules, such power was taken away by subsequent legislation. The argument is that because the St. of 1902, c. 315, regulated the speed of automobiles throughout the State, it abrogated all park regulations. It is clear however that this statute was not intended to apply to park regulations. It refers to the speed of automobiles on public highways, streets and ways. This act was repealed by the St. of 1903, c. 473, § 15, the previous section containing a clause that “nothing herein contained shall be so construed as to affect the rights of boards of park commissioners as authorized by law.” The reason for this is that the act contains certain general regulations which apply to all automobiles, but § 8, which applies to speed limit only, applies to a public way or private way laid out under the authority of statute.
4. The next contention is that under § 14 of the St. of 1903, c. 473, no regulation of the park commissioners shall be effective unless notice of the same is posted conspicuously at the points where any road affected thereby joins other roads. But a reading of the section shows very clearly that the last sentence of the section applies only to special regulations made by boards of aldermen of cities and selectmen of towns, and has nothing to do with boards of park commissioners. The section reads as follows: “ Nothing herein contained shall be so construed as to affect the rights of boards of park commissioners as authorized by law. Boards of aldermen of cities and the selectmen of towns may make special regulations as to the speed of automobiles and motor cycles, and as to the use of such vehicles upon particular roads or ways, including the right to exclude them altogether therefrom. Such exclusion, however, shall be subject to an appeal to the Massachusetts highway commission, whose decision in the case shall be final. No such special regulation shall be effective unless notice of the same is posted conspicuously at the points where any road affected thereby joins other roads.”
We find nothing else in the case which requires special consideration.
¡Exceptions overruled.
