Goddard, &c.

33 Mass. 504 | Mass. | 1835

Shaw C. J.

delivered the opinion of the Court. No question is made of the facts in this case, but it is conceded, that the petitioner did not clear the side walk in front of his land, in the manner required by the by-law of the city, and he justifies this on the ground that the law itself is invalid and of no binding force. For the purpose of having this question deliberately considered, and for the purpose of taking several exceptions to the course of proceedings, the petitioner has prayed for a writ of certiorari to the Municipal Court.

1. The first objection is, that the law authorizing a prosecution for breach of the by-laws of the city, in the name of the Commonwealth, is unequal and unjust, because it has the effect of preventing the defendant from recovering costs, in case he shall prevail in his defence.

This objection was taken in Commonwealth v. Worcester, 3 Pick. 462, and decided not to be valid. The question goes to the policy and justice of not allowing a defendant his necessary costs, in cases of public prosecution, where he is acquitted, and yet it is well established, that costs are not allowed in such cases. There is no difference in prin ciple, between a prosecution for. breach of a by-law, made to promote the health, safety and convenience of the inhabitants of a large city,' and a like prosecution, for nuisance or other misdemeanor, made such by common law or by statute. In both cases the law is made by competent authority, the object of it is, the health, comfort and safety, of the community, and in both cases, a violation of it is a public injury, done to the whole community, and the prosecution is for the purpose of compelling obedience, as well by the offender as by others. If it were to enforce a private right by the city, there would be weight in the objection, and it would stand on different grounds. Being a by-law made to enforce a police regulation, a prosecution for the breach of it is strictly a public prosecution, and there seems to be no impropriety or incongruity in authorizing a prosecution in the name of the Commonwealth, and it is no valid objection to this provision of law, that in prosecutions in the name of the Commonwealth defendants are not allowed costs on acquittal, because the objection is common to this and all other prosecutions in the name of the Commonwealth, for the violation of laws made for the public good.

2. The next objection is, that the by-law is repugnant to the general laws of the Commonwealth, because the general statute, made for the location and regulation of highways, St. 1786, c. 81, makes a different provision for the removal of snow. Several answers were suggested to this objection ; we think one is decisive, which is, that by several special acts, the whole proceedings in regard to the making and regulating streets and highways in Boston, is taken from the operation of the general law, and regulated exclusively by these acts. The statute of 1786, we think, is not in force in this city, and therefore the supposed repugnance between this by-law and that statute does no exist. St. 1799, c. 31 ; St. 1804, c. 73, &c.

3. Another, and perhaps the most important objection, is, that the by-law is one imposing a tax or duty upon the citizens, and it is a violation of the constitution m this, that it is partial, and unequal, and contravenes that fundamental maxim of oui social system, that all burdens and taxes laid on the people for the public good shall be equal.

But the Court are all of opinion, that the by-law in question is not obnoxious to this objection.

It is not speaking strictly, to characterize this city ordinance as a law levying a tax, the direct or principal object of which is, the raising of revenue. It imposes a duty upon a large class of persons, the performance of which requires some labor and expense, and therefore indirectly operates as a law creating a burden. But we think it is rather to be regarded as a police regulation, requiring a duty to be performed, highly salutary and advantageous to the citizens of a populous and closely built city, and which is imposed upon them because they are so situated as that they can most promptly and conveniently perform it, and it is laid,, not upon a few, but upon a numerous class, all those who are so situated, and equally upon all who are within the description composing the class.

It is said to be unequal, because it singles out a particular class of citizens, to wit, the owners and occupiers of real estate, and imposes the duty exclusively upon them.

If this were an arbitrary selection of a class of citizens, without reference to their peculiar fitness and ability to perform the duty, the objection would have great weight, as for instance, if the expense of clearing the streets of snow were imposed upon the mechanics, or merchants, ot any other distinct class of citizens, between whose convenience and accommodation, and the labor to be done, there is no natural relation. But suppose there is a class of citizens who will themselves commonly derive a benefit from the performance of some public duty, we can see no in equality in requiring that all those who will derive such benefit, shall by a general and equal law be required to do it. Supposing a by-law should require every inhabitant, who keeps a cart, truck or other team, or a coach or other carriage, to turn out himself or send a man, with one or more horses, after each heavy fall of snow, to assist in levelling it. Although other citizens would derive a benefit, yet as these derive some peculiar benefit, accompanied with the ability, I can at present perceive no valid objection to a by-law requiring it, on the ground of inequality. Supposing a general regulation, that at certain seasons of the year, every shop-keeper should sprinkle the side walk in front of bis own shop, or sweep it, inasmuch as he has a peculiar benefit, and as the duty is equal upon all who come within the description, it seems to us to be equal, in the sense in which the law requires all such burdens to be equal. And it appears to us that the case before us is similar. Although the side walk is part of the public street, and the public have an easement in it, yet the adjacent occupant often is the owner of the fee, and generally has some peculiar interest in it, and benefit from it, distinct from that which he enjoys in common with the rest of the commu nity. He has this interest and benefit, often in accommo dating his cellar-door and steps, a passage for fuel, and the passage to and from his own house to the street. To some purposes therefore it is denominated his side-walk. For his own accommodation, he would have an interest in clearing the snow from his own door. The owners and occupiers of house-lots and other real estate, therefore, have an interest in the performance of this duty, peculiar and somewhat distinct from that of the rest of the community.

Besides, from their situation, they have the power and ability to perform this duty, with the promptness which the benefit of the community requires, and the duty is divided, distributed and apportioned upon so large a number, that it can be done promptly and effectually, and without imposing a very severe burden upon any one. Supposing a bylaw should require, what is often done, in practice, that upon an alarm of fire in the night, all householders, on streets leading to and near the fire, should exhibit a light. This would seem-to be reasonable. Or that all the owners or occupiers of dwellinghouses, having a well and pump, should keep them-in repair at their own expense, to be used ir case of fire. It would operate partially, but it seems to us not unequal, in the sense in whrch we are using that term. The city might keep persons ready in every street, to light torches and flambeaux in case of fire, and the ex-fíense be paid from the treasury ; still it appears to me, that as householders would derive a benefit from the operation of this general regulation, as their local situation puts it peculiarly within their power and ability to perform it without great expense, and as it is equal in its terms, it would not be obnoxious to the charge of being invalid for partiality and inequality.

In all these cases the answer to the objection ol pai tiality and inequality is, that the duty required is a duty upon the person in respect to the property which he holds, occupies and enjoys, under the protection and benefit of the laws, that it operates upon each and all in their turns, as they become owners or occupiers of such estates, and it ceases to be required of them, when they cease to be thus holders and occupiers of the estate, in respect to which the duty is required. In this respect it is like a land tax, or house tax, it- does not bear upon owners of persona] property, and therefore does not bear upon all citinens alike, but is not on that account unequal or partial, in the sense contemplated by the Declaration of Rights, requiring all taxes and burdens to be equal and impartial.

The Court are all of opinion, that as a by-law, the regulation in question was a reasonable one, that it was not repugnant to the constitution or laws of the Commonwealth and that the conviction was right.

Petition dismissed.