Vandine

| Mass. | Mar 31, 1828

Putnam J.

delivered the opinion of the Court. The first objection is that this by-law is not binding upon strangers, if it should be considered as binding upon the citizens of Boston.

Some by-laws are binding upon strangers as well as upon the inhabitants or members of the corporation, and some are not. The distinction is between corporations united as a fraternity for the purposes of business, having no local jurisdiction, and corporations having a territorial jurisdiction ; the former have not, but the latter have power to make by-laws binding upon strangers.

For example ; a by-law of the corporation of Trinity House, “ that every mariner, within twenty-four hours after anchorage in the Thames, put his gunpowder on shore, does not bind, because the corporation has no jurisdiction upon the Thames.” Com. Dig. Bye-law, C 2.

In the case of Dodwell v. The University of Oxford, 2 Ventr. 33, the Chancellor’s Court of the University made a oy-Iaw, that whoever, privileged or not privileged, should be taken walking in the streets at 9 o’clock at night, having no reasonable" excuse, by the proctor, &c. should forfeit, &c. And it was held that the corporation could not make a bylaw binding upon any who were not of their body. They went beyond their jurisdiction, which could not be considered as extending to the inhabitants of Oxford who were not scholars. Regard is to be had to the nature of the incorporation ; if it is a banking incorporation, for example, their bylaws must be confined to the proper mode of conducting their affairs. Where the corporation has a local jurisdiction, their bylaws affect all who come within it; for example, the by-law of the city of London, that no citizen, freeman or stranger, should expose any broad-cloth to sale within the city before it should be brought to Blackwell Hall to be examined whether it were saleable or not, was held binding upon strangers as well as citizens. 5 Co. 63.

So in Pierce v. Bartrum, Cowp. 269, a by-law of the mayor and common council of the city of Exeter, that no person should slaughter beasts or keep swine within the walls of the city, was held good against the defendant, who was not free of the city, but only residing there. He was considered as an inhabitant pro hac vice. So where the corporation have jurisdiction over all of the same trade or profession within certain limits, as the College of Physicians have for seven miles round London ; whose by-laws regulating the practice of physic are binding upon all within those limits.

The by-laws which are made by corporations having a local jurisdiction, are to be observed and obeyed by all who come within it, in the same manner as aliens and strangers within the Commonwealth are bound to know and obey the laws of the land, notwithstanding they may not know the language in which they are written. They receive the benefits arising from the municipal arrangements, and are presumed to assent to them, upon the same principle which requires from them a temporary allegiance to the state for the protection it affords to them during their residence.¹

But it is contended that this by-law is void as it is in restraint of trade, and operates as a monopoly. Every regulation of trade is in some sense a restraint upon it; it is some c.og or impediment, but it does not therefore follow that it is to be vacated. If the regulation is unreasonable, it is void; 3 if necessary for the good government of toe society, it is good. ¹

The case cited by the counsel for the defendant from 1 Ro² Abr. 364, was of the former character. The mayor and commonalty of London made a by-law, that no carman vi itlun the city should go with his cart, without license from the wardens of such an hospital, under a certain penalty for each offence ; and it was held to be a void by-law, because it was in restraint of the liberty of the trade of a carman, and it was held to be unreasonable, because it went to the private benefit of the wardens of the hospital, and was in the nature of a monopoly. Now we think that case was rightly decided ; it was an act of oppression. We perceive no reason why the wardens of the hospital should have a superintendance and control of all the business of the carmen, thus laying them under a contribution at the will of the wardens.

To arrive at a correct decision whether the by-law be reasonable or not, regard must be had to its object and neces sity. Minute regulations are required in a great city, which would be absurd in the country. The cases upon this subject are well collected by Baron Comyns in his Digest, title Byelaw. It has been found to be reasonable in the city of London, to provide that brewers’ drays should not be in the streets there after eleven o’clock in the morning in summer, and one in winter ; that no person should unlade coals out of a barge, if he be not of the porter’s company ; thus in some manner restraining trade.

There have been regulations also adopted in that city, that •tone shall be brokers unless licensed and sworn; that none shall be hawkers without license ; thus in some measure restraining the natural rights of the subjects. Now it is contended that the by-law under consideration is in restraint, and not a mere regulation, of the trade in which the defendant is engaged; that he provides as good and tight carts as the men do who are authorized by the city, in the performance of this labor. We do not perceive that there is any more reason to complain of the law requiring a license to do this work, than ol the law prohibiting the keeping of livery stables in any place not licensed. One might just as well complain of the regulation which prevents him from being an auctioneer withoui license; and so of various other trades and concerns which 1 is found necessary to subject to such restriction.

The great object of the city is to preserve the health of the inhabitants. To attain that, they wisely disregard any expense which is deemed to be requisite. They might probably have these offensive substances carried out of the city without any expense, if they would permit the people from the country to take them away at such times and in such manner as would best accommodate them. Every one will see that if this business were thus managed, there would be continual moving nuisances at all times, and in all the streets of the city, breaking up the streets by their weight and poisoning the air with their effluvia. It is obvious, that the oh ject and interest of the city, and those of the carmen, in this concern, are extremely different. But it is contended that the city authorities may regulate strangers and unlicensed persons, in regard to the number of horses and kind of carts to be employed, just as well as they can carts and the conduct of the licensed persons. It seems to us, however, that the city authority has judged well in this matter. They prefer to employ men over whom they have an entire control by night and by day, whose services may be always had, and who will be able from habit, to do this work in the best possible way and time. Practically we think the main object of the city government will be better accomplished by the arrangement they have adopted, than by relying upon the labor of others, against whom the government would have no other remedy than by a suit for a breach of contract. . The sources of contagion and disease will be speedily removed in small loads, which will not injure the pavements, nor annoy the inhabitants. We are all satisfied that the law is reasonable,¹ and not only within the power of the government to prescribe, but well adapted to preserve the health of the city.

The direction and opinion of the judge of the Municipal Court was entirely correct.

1 See Revised Stat c. 15, § 13.

1 It is enacted by the Revised Statutes, that the by-laws duly made by any town shall be binding upon all persons coming within the limits thereof, as well as upon the inhabitants thereof. C. 15, § 14. See Angeli & Ames on Corp. 199, 200; Davis v. Morgan, 1 Crompt. & Jerv. 587; 1 Tyrwh. 457

2 See Clark v. Le Cren, 2Barn. & Cressw. 59; Hesketh v. Braddock, 3 Burr. 1847; London v. Compton, 7 Dowl. & Ryl. 597; Shaw v Pope, 2 Barn. & Adol. 465.

1 Whether a by-law be reasonable or not, is for the court to determine Commonwealth v. Worcester, 3 Pick. 462; Angell & Ames on Corp. 198.