State v. Boardman

93 Me. 73 | Me. | 1899

Wiswell, J.

Complaint for the alleged violation of the following ordinance or by-law of the town of Roekport: “All of that portion of Union Street in Rockpoit situated Northerly and Westerly and within fifteen (15) feet of the Northerly and Westerly rail of the Electric R. R. track, is hereby set apart and designated as the portion of said street over and upon which limestone may be transported on wheels, also all other material on wheels, where the load, exclusive of cart, wagon or vehicle, exceeds 2,500 pounds in weight; and all persons are prohibited from using any other portion of said street for the purposes aforesaid ; and any person engaged in transporting lime-stone on wheels or other material of the weight aforesaid, on wheels, using any other portion of said street for such purpose, shall be fined not less than two nor more than five dollars for each offense, to be recovered, by complaint, to the use of the town of Rockport.”

The respondent attacks the validity of this by-law upon three grounds, namely, because it had never been approved by the county commissioners of Knox county or by a justice of the Supreme Judicial Court; because it is inconsistent with the laws of the state; and because it is unreasonable. Must such an ordinance be approved by the county commissioners or by a justice of this court? We think not.

The legislature of this state has by various enactments at different times given to municipalities the power to adopt by-laws in regard to a large number of matters, all of which different enactments have been condensed into c. 8, § 59, of the present revised statutes. As that section now reads municipalities are authorized to adopt such ordinances for the purposes named in twelve separate paragraphs. By paragraph 1, “For managing their prudential affairs,” such by-laws must be approved by the county commissioners or by a judge of this court; but in regard to by-laws in relation to the purposes, enumerated in the other eleven paragraphs of the section, no such approval is made necessai-y.

The words “prudential affairs” are certainly very indefinite and imsatisfactory, and it might be a very difficult matter in many cases to determine just what is or is not included within the meaning of the expression. This term was taken from the Massachusetts statute where the same difficulty has been appreciated. In the case of Spaulding v. Lowell, 23 Pick. 71, Chief Justice Shaw 'said: “The ambiguity lies in the indefinite term, ‘prudential affairs,’ and the difficulty arises in each case in settling what concerns fall within it.” But however indefinite the term may be, that it was not intended to cover the matters enumerated in the other paragraphs of the section, is shown, we think, both by the language of the original enactments and the text and arrangement of paragraphs in the section of the revision, by which towns are empowered to make by-laws in regard to police regulations; respecting infectious diseases; for setting off portions of streets for sidewalks; in regard to the erection of wooden buildings; and as to various other matters.

The authority of a municipality to adopt such an ordinance as the one here under consideration is given, we think, by paragraph IX: “For the regulation of all vehicles used therein, by establishing the rates of fare, routes and places of standing, and in any other respect.”

So therefore it only remains to inquire whether this by-law is inconsistent with law or is unreasonable. We are unaware of any law of the State which it contravenes. All public ways and streets are for the accommodation primarily of travelers of all classes and kinds, but the traveler is not in all, or in many cases, entitled to the whole width of the street for his accommodation. He is entitled to a reasonably safe, convenient and practicable opportunity for travel and, passage. A portion of a way as located, not being needed for travel, may be left outside of the wrought road, another portion may be set off for sidewalks and the use of the remaining width of the way so regulated that heavily loaded teams and other vehicles shall use exclusively different portions thereof, and still no one would be deprived of his rights, but upon the other hand- all might be very much benefited in the exercise of them.

Highways and streets are of course for the public use, they are not alone for the people of the municipality in which they are located, and such ways can not be considered in any sense the easement or property of the town; but the municipality in which a public way is located has been vested by the legislature with the supervision and control of such, ways for public use, and are charged with the responsibility of keeping them in repair and reasonably suitable and sufficient for use by the public for purposes of travel. The power to properly regulate the use of ways so as to preserve for all the rights of all is not inconsistent with any provision of law.

Such a by-law does not deprive a person of any right, it simply regulates the exercise of it and it can be readily seen that such a regulation may afford to all travelers much better opportunities for travel than they could otherwise enjoy.

In Commonwealth v. Stodder, 2 Cush. 562, the court said: “We cannot doubt that a by-law, reasonably regulating the use of the public streets of the city as to carriages of an unusually large size, or as to those which from the inode of using them would greatly incommode, if not endanger, those having occasion to use such public streets, would be valid and legal; and that such regulations might prescribe certain streets as the route of travel for such vehicles, and provide for their exclusion from certain other streets.”

Was this by-law reasonable? By its terms all persons passing over the street named, with any vehicle on which there were loads exceeding 2,500 pounds in weight, are restricted to the use of fifteen feet of the width of the street next to the electric railroad track. That this would be a reasonable, and in mauy cases a most salutary regulation, we have no doubt; but such a by-law might be unreasonable, if that portion of the way to which such vehicles were restricted was allowed to become in such a condition as to be impassable, that is, if the only portion of the way which the by-law allowed to be used for heavily loaded vehicles could not be at all used, because it had been allowed to become in such a condition of want of repair as to be impassable, then that portion of the public, who had occasion to use the way for this purpose, would be absolutely deprived of their right to use the way for the purpose of travel.

For such a by-law then to be reasonable and valid, with reference to such a way and in such a locality as in this case, that portion of the street which may be used by heavily loaded vehicles must be reasonably suitable for the purpose; and the by-law will be valid or invalid depending upon whether that portion of the way, to which such vehicles are restricted, is or is not reasonably suitable for the purpose.

Here the defendant offered evidence tending to prove that the fifteen feet in width of street next to the railroad track was absolutely impassable. The evidence was excluded. We think it should have been admitted because, if true, the by-law became unreasonable.

It is true that the question of the reasonableness of a by-law is for the determination of the court, and this conclusion does not take away from the court the determination of the question: certain facts will have to be passed upon by the jury; but the standard upon the question of the reasonableness or otherwise of the by-law is established by the court.

Exceptions sustained.