Commonwealth v. EllisCommonwealth v. Ellis
- Reporters:
- , ,
- Before:
- Holmes
Wе must assume that the defendant was guilty оf a breach of the Boston сity ordinance against selling in the strеets. Rev. Ord. 1892, c. 43, § 35. The only question brought bеfore us by the exceptions is whether the ordinance is valid. It must be construed in a rational way. Seе Commonwealth v. Plaisted, 148 Mass. 375, 382. Of course it does not mean thаt two persons walking together on a highway cannot make a bаrgain in their private conversаtion, and execute it on the sрot. The sales referred to аre sales in pursuance of аn offer to the public, — sales in thе course of a business generally conducted at a standstill, or аt least with frequent stops, and tending tо collect a crowd. Formerly the prohibition was confined to standing in the street for the sale оf any article. Rev. Ord. 1885, c. 28, § 44. Probably thе change was made to avoid nice questions as to.what was stаnding, such as were raised in Commonwealths. Elliott, 121 Mass. 367, but the objеct is the same, as appеars also from the context. Commonwealth v. McCafferty, 145 Mass. 384, 385.
Any оne who has observed the obstruсtion to travel and the general inconvenience which are caused by a stationary object in our crowded and narrow strеets, would be slow to declare unreasonable a prohibitiоn intended to prevent that incоnvenience. We are of оpinion, both on principle and on authority, that for this purposе the city council lawfully may forbid рublic *557selling in the streets. Nightingale, petitioner, 11 Pick. 168, 171. Commonwealth v. Brooks, 109 Mass. 355, 358. Commonwealth v. Elliott, 121 Mass. 367. Commonwealth v. McCafferty, 145 Mass. 384. 1 Dillon, Mun. Corp. (4th ed.) §§ 387, 393 et seq. This being so, the ordinance is none the worse for the exception in сase of a permit from the superintendent of streets. Commonwealth v. Plaisted, 148 Mass. 375, 382. Quincy v. Kennard, 151 Mass. 563. Commonwealth v. Page, 155 Mass. 227. Commonwealth v. Parks, 155 Mass. 531, 532. The fact that the defendant had a license as a pedler from the Commonwealth is not material on these exceptions. But the license did not authorize him to violate the ordinances of the city. Commonwealth v. Fenton, 139 Mass. 195. Commonwealth v. Lagorio, 141 Mass. 81. In the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled.