Commonwealth, in
Certiorari, versus William Worcester.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF MASSACHUSETTS, SUFFOLK AND NANTUCKET
20 Mass. 462; 1826 Mass. LEXIS 19; 3 Pick. 462
March, 1826, Decided
PRIOR HISTORY: [**1] This was a writ of
certiorari to the Municipal Court for the city of Boston.
It appeared that a complaint was made to the Police Court by the city marshal,
"in behalf of the commonwealth of Massachusetts," that Worcester, on
the 28th of October, 1824, drove two or more horses drawing a cart, in one of
the public streets of the city, "on a trot, and not at a moderate foot
pace, against the peace of said commonwealth, and the form of the by-laws of
said city in such case made and provided."
The case was afterwards carried into the Municipal Court, and there Worcester
moved that the complaint and the proceedings thereon might be quashed; -- 1.
Because neither the Police Court, nor the Municipal Court, had jurisdiction
over the case; -- 2. Because no law incorporating and authorizing the supposed
city of Boston to make by-laws, nor any by-law by the supposed city made, was
fully, plainly, substantially, and formally set forth, according to the laws
and the constitution; -- 3. Because the supposed by-law was null and void; --
and 4. Because the complaint was in other respects informal and wholly
insufficient in law.
This motion was overruled, and thereupon Worcester pleaded [**2]
that he was not guilty of the offence charged in the complaint; and the jury
being called, he offered a challenge to the array, stating that the venire
facias issued from the Municipal Court, and was served by a constable of the
city, and that the jurors were selected and drawn from the jury box of the city
by the mayor and aldermen of the city, and that the judge of that court, the
mayor and aldermen, and the constable, were ratable and rated inhabitants of
the city, to which city one half of the penalty or fine mentioned in the
supposed by-law was to accrue, and that the mayor and aldermen and jurors were
concerned in the event of the issue to be tried. The attorney for the
commonwealth demurred to the challenge, and it was considered by the judge that
the panel of the jurors be affirmed.
The same objection was then made to the jurors individually, and to the
witnesses on the part of the prosecution, but it was disallowed.
The attorney for the commonwealth offered in evidence a copy of the record of a
by-law, made by the selectmen of Boston on the 22d of May, 1801, which
provides, "that all carters and other persons having the care of any
wagon, cart, truck, sled, or drag, [**3] passing through or in said
streets of said town, shall drive their beast or beasts at a moderate foot
pace, and shall not suffer them to go in a gallop or trot, under a penalty of
not less than two, nor more than five dollars." He likewise produced a
copy of an order of the city council, of the 2d of May, 1822, that all the
by-laws of the town of Boston which were in force on the 30th of April, 1822,
should be in force in the city of Boston. These writings were objected to as
being of no validity; but they were admitted as sufficient evidence, that the
by-law contained in the first writing had been adopted by the city.
Isaac Vose, a witness on the part of the government, testified that, on the
28th of October, 1824, he saw Worcester standing in an empty cart drawn by two
or more horses, which he was driving on a fast trot, at the rate of from six to
ten miles an hour, through Summer street; but that he saw no person in a
situation to be endangered by such driving. He would not testify that all the
horses were trotting. Simeon Dow, another witness on the part of the
government, testified that Worcester, on the day above mentioned, was employed
by him to drive a wood cart belonging [**4] to him; that there were
three horses harnessed to the cart; that the leading horse usually walked so
fast as to keep the others on a trot, but that he could not go, either on a
walk or a trot, faster than at the rate of five miles an hour.
Worcester then offered witnesses to prove that he was reputed and known to be a
prudent, steady, and careful driver; but their testimony was held to be
inadmissible.
He then offered to prove, that before the 28th of October, verbal
communications had been made by the mayor and aldermen and city marshal, whose
province it was to enforce the by-laws of the city, to the drivers of carts,
and particularly to Worcester, that they might drive through the streets on a moderate
trot, and that no prosecution should be instituted therefor. This evidence was
rejected.
He further offered to prove by witnesses, that if the drivers of such carts and
carriages as are mentioned in the by-law, should be obliged to drive on a walk,
it would be prejudicial to the inhabitants of the city, by impeding their
lawful business and raising the price of wood and other articles of
consumption, and that if the by-law is construed so to restrain them, it is
unreasonable [**5] and contrary to the public good and therefore
void. This evidence was rejected.
The judge delivered it as his opinion to the jury, that the evidence in the
case was sufficient to prove the issue on the part of the commonwealth,
provided they believed the testimony of the witnesses; that the town of Boston,
as sufficiently appeared, had authority to make the by-law in question, and
that there was sufficient evidence to show it had been adopted by the city
council of the city of Boston; that it was a good and valid by-law, and not
unreasonable nor contrary to the public good; that the true intent and meaning
of it was, to prohibit driving carts in the streets faster than at a moderate
foot pace, so as to endanger persons standing or walking in the streets, and
also to prevent the noise which would be occasioned by driving the horses on a
trot or gallop; and that notwithstanding that, Worcester was driving in such a
manner as that no danger did, or was likely to ensue therefrom to any person in
the street, nevertheless it was their province to determine, whether he was
driving contrary to the true intent and meaning of the by-law; and further,
that if they believed that one of the [**6] horses could walk as
fast as the others could trot, and was so walking during all the time that Vose
saw Worcester driving, nevertheless, in such case, it was for them to decide,
whether Worcester was guilty of driving the horses faster than at a moderate
foot pace.
The jury thereupon returned a verdict, that Worcester was guilty of the offence
charged against him.
[summary of the arguments of counsel omitted]
OPINION: [*470] Wilde J. delivered the opinion of
the Court. Sundry exceptions have been taken to the proceedings brought before
us by the certiorari in this case, and the general question is,
[*471] whether such errors are disclosed by the record as will
require us to quash the proceedings. [Here his Honor stated some of the
proceedings as above recited.] To these several decisions of the court below,
the defendant excepted, and now objects. They all depend on the same principle;
and the question is, whether the judges of the Police and Municipal Courts, and
the jurors, and the city officers, had, as members of the corporation to which
a portion of the penalty accrued, any such interest as should disqualify them
to act in their respective offices, and whether for the same reason the
witnesses were rendered incompetent.
By the common law no person is allowed to sit as judge or juror, or to testify,
in a cause in which he is a party [**17] or has an interest. And a
corporate interest, however inconsiderable and remote, is held to be sufficient
to disqualify any member of a corporation. There are decisions the other way in
relation to witnesses, but these decisions have been overruled. The Court will
not relax the objection by inquiring into the degree of influence which may be
supposed to exist, because any degree of influence may create an improper bias,
and should operate as a disqualification. But such a disqualification may be
removed by the legislature; and so it was ruled in the case of Commonwealth
v. Ryan, 5 Mass. 90; and in the case of The Inhabitants
of Lincoln v. Prince, the Court recognise the same principle. n1
So also has it been considered by the legislature. By St. 1792, c.
32, [see Revised Stat. c. 94, § 54,] it is provided, that the
inhabitants of towns and members of societies may be admitted as competent
witnesses in suits where the town or society is a party, or is interested in
the event of the suit. And for more than thirty years this has been regarded as
a valid, constitutional act. n2
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n1 See Lincoln v. Prince, 2 Mass. (Rand's ed.) 547,
n. (a). [**18]
n2 See Lufkin v. Haskell, ante, 359, and note 1; Roscoe's
Dig. Crim. Evid 110 to 112; 1 Stark. Evid (5th Amer. ed.) 145, and note.
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It is objected, however, that in relation to the judges and jurors the
authority of the legislature is restrained by the 29th article of the Bill of
Rights, which declares, that it is the right of every citizen to be tried by
judges as free, impartial, and independent, as the lot of humanity will admit.
The qualifying words in the declaration suppose that judges and jurors
[*472] may have some degree of interest or feeling in all public
prosecutions, for all are interested in the preservation of the peace; but if
this interest is inconsiderable and not such as may be reasonably supposed to
create a bias, it is not to be regarded. "It is for the legislature to
say," as Chief Justice Parsons remarks in the case of the Commonwealth
v. Ryan, "when this theoretic interest shall be no good objection
to a juror." It is true that Lord Coke says, that if an act of
parliament should ordain that the same person should be party and judge, or
which [**19] is the same thing, judge in his own cause, it would be
a void act of parliament; and Lord Holt says, that this is a very
reasonable and true saying, and free from any extravagancy. And no doubt it is;
but no such objection applies to the present case. The city of Boston is not a
party to the prosecution, nor liable for costs. It is only entitled to a
portion of a very trifling penalty, which, if divided among the inhabitants,
could not possibly create any bias. But the inhabitants have no right to claim
any dividend of the penalty. Their interest therefore is imaginary, and exists
only in theory. To suppose that a recovery in this case would reduce the amount
of taxes hereafter to be assessed, is altogether extravagant. In making
provision for the administration of justice within the city, the legislature
have determined that such an interest should not operate as a disqualification.
By the 4th section of St. 1824, c. 28, it is provided, that
no person shall be disqualified from acting as magistrate, juror, or witness,
in certain suits or prosecutions, by reason of any interest which he may have
as an inhabitant of the city of Boston in the sum or sums of money to be
recovered. [**20] n3 We consider this as a valid and constitutional
provision. But without relying on this provision, which perhaps is not
applicable to this prosecution, it is a sufficient answer to the objection of
interest, that jurisdiction is expressly given to the Police Court, and that
the service of process from a justice in Chelsea within the city is prohibited.
The witnesses in support of the prosecution were rendered competent by a former
statute.
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n3 See Revised Stat. p. 808, amendm. to c. 90, § 124.
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[*473] As to the evidence offered by the defendant, we think I was
rightly excluded. It related to immaterial facts, which could have no influence
except to mislead the jury. It was not a case involving the defendant's
character, and the permission of the mayor and aldermen attempted to be proved
was without authority and void.
So the evidence adduced to prove the by-law unreasonable, was clearly
inadmissible. It was for the Court to decide whether the by-law was reasonable
or not; and evidence to the jury [**21] on this point was
irrelevant. But the evidence as stated would have proved nothing unreasonable
in the by-law. It is not a law in restraint of trade, but it is a reasonable
regulation of it, made for the good government of the city and to prevent a
public nuisance. If it may be presumed somewhat to enhance the expense of
transportation, this is more than compensated by many public advantages which
result from it, so that on the whole the regulation is clearly a beneficial
one.
Another objection, on which great stress has been laid, relates to the form of
the complaint, which ought, as it is urged, to have set out the by-law at
large. But if the statute dispensing with the necessity of thus encumbering the
record is a valid law, this objection must fail. Perhaps, even without the aid
of the statute, the courts below, being composed of citizens of Boston, were
bound to take notice of the by-law, though generally, no doubt, a by-law must
be pleaded.
We have not, however, any doubt as to the dispensing power of the statute. That
it is limited in its operation to the city of Boston, is no objection to its
validity. Surely the power of the legislature to pass a local act cannot be
questioned. [**22] It is not only the right, but the duty of that
branch of the government, so to vary the provisions of law, as to meet, so far
as is practicable, the peculiar exigencies of every portion of the community.
The forms of administering justice are not required to be uniform throughout
the commonwealth. The Municipal and Police Courts are peculiar to the city of
Boston, but it has never been doubted that they were properly [*474]
and constitutionally instituted. The object and effect of a local law is always
to confer on a portion of the community some peculiar and exclusive benefits.
All charters to corporations are grants of exclusive privileges. But special
laws are not void on account of their limited operation. It is therefore no
objection to the statute under consideration, that it is confined to the city
of Boston. n4
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n4 See Pierce v. Kimball, 9 Greenl. 54; Wales v. Belcher,
3 Pick. 508.
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Another objection made to the form of the complaint is, that it is in the name
of the commonwealth. But [**23] this is expressly authorized by St.
1817, c. 50. This law is not repealed by the incorporation of the
city. The act of incorporation, if it may be so called, did not annul the
rights and privileges of the town. It only conferred on the then existing corporation
a new name with additional powers.
We can find nothing erroneous in the judge's instructions to the jury.
It is provided by the by-law, that all carters, and other persons, having the
care of any cart, wagon, sled, or drag, passing through or in said streets of
said town, shall drive their beast or beasts at a moderate foot pace, and shall
not suffer them to go in a gallop or trot.
Vose testified that he saw the defendant standing in an empty cart, with the
reins to guide the horses in his hands, and driving the same, which was drawn
by two or more horses, on a fast trot, at the rate of from six to ten miles an
hour; and the judge instructed the jury, that the evidence, if believed, was
sufficient to maintain the issue on the part of the commonwealth; and most
certainly it was. But another witness gave it as his opinion, that the horses
could not have moved with so great rapidity as was supposed by Vose; and the
judge [**24] left it to the jury to decide upon the whole evidence,
whether the defendant was guilty of driving the horses faster than at a
moderate foot pace, contrary to the true intent and meaning of the by-law: and
this was right.
It is also objected, that it was left to the jury to decide on the true meaning
of the by-law; but there is no foundation for this objection. The judge gave
his opinion as to the construction of the by-law, which was adopted by the
jury, [*475] and the construction was correct. Besides, in criminal
prosecutions the jury are the judges of both law and fact. n5
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n5 See 1 Chitty's Criminal Law, (3d Amer. ed.) 626, note.
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One objection more only remains to be considered. The complaint concludes
against the form of the by-law in such case made and provided. At present we
are inclined to the opinion, that this is not sufficient; and that it ought to
have concluded also against the form of the statute, by which alone this
prosecution can be maintained. n6 But as this objection does not appear to
[**25] have been made in the court below, and has not been argued,
we will suspend the decision of the cause for the purpose of hearing counsel as
to this point.
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n6 See Commonwealth v. Gay, 5 Pick. 44; 1 Chitty's Crim. Law,
(3d Amer. ed.) 290, note.
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