55 Mass. 493 | Mass. | 1848
The by-law, the validity of which is drawn in issue in this prosecution, purports to be made under the authority of the statute of 1847, c. 166. Under this authority, the town of Adams passed the by-law in question, imposing a penalty of $> 20 upon any person who should sell any strong beer, or other intoxicating liquor, in the town of Adams, in a less quantity than twenty-eight gallons.
The phraseology of the statute of 1847 varies but slightly from the corresponding provision of the Rev. Sts. c. 15. It authorizes towns to make all by-laws that may be necessary to preserve the peace, good order and internal police. The provision in the Rev. Sts. c. 15, <§> 13, is, that towns “ may make all such by-laws, for directing and managing the prudential affairs of the town, as they shall judge most conducive to the peace, welfare and good order,” &c.
The act of 1847 omits the qualifying words, “ for directing and managing the prudential affairs of the town.” The argument is, that by omitting this limitation, by which the power of towns to make by-laws is restricted to cases affecting their prudential affairs, it was intended by the legislature to confer on towns a power of legislation, limited only by their judgment of what the peace, good order and internal police might render expedient. This power would extend, under such a construction, to every department of the criminal law,
But further, this statute in terms gives towns the power to make by-laws, to be enforced by penalties, subject to the provisions of the Rev. Sts. c. 15, <§>§ 13, 14, 15. The power is given in general words; but the words are so general as to indicate, that some restriction as to reasonable limits was in the mind of the legislature; and that such restriction was intended to apply, with a just regard to the objects to be attained, and the subject matter on which it was to operate; that is, the power conferred was to be limited to such objects as are usually sought and attained by municipal by-laws. The provision, then, that this power should be subject to the Rev. Sts. c. 15, <§> 13, would limit the objects of it to the direction and management of the prudential affairs of a town; referring to the numerous provisions of law, usages, and judicial decisions, to show what the prudential affairs of a town are. Comm'th v. Worcester, 3 Pick. 462; Willard v. Newburyport, 12 Pick. 227; Spaulding v. Lowell, 23 Pick. 71.
But another consideration, quite decisive, we think, to show that the legislature did not intend to give the unlimited power contended for, is, that they used the term “by-law,’ and gave
But whatever other poAver the legislature intended to confer, we are of opinion, that it did not warrant and give effect to the by-Iaiv adopted by the town of Adams, imposing a penalty on all persons for selling strong beer and other intoxicating liquors Avithin the limits of that town, without a license. This is a legislative power, which has been exercised by the government from the earliest times, and at the time when this by-law was adopted, laws of the commonwealth were in force on the same subject, certainly as regards intoxicating liquors, and the by-laiv makes no distinction. We have not thought it necessary to consider how far the by-law in question is repugnant to the laws of the commonwealth, being of opinion that independently of that consideration, it can not be sustained.
Exceptions sustained.