CITY OF BOSTON.

REVISED ORDINANCES

OF 1885.

AS PASSED AND APPROVED

DECEMBER 14, 1885.

Be it ordained by the City Council of Boston, as follows: —

SECTION 1. All by-laws of the city shall be denominated Ordinances, enordinances, and the enacting style shall be, "Be it ordained acting style of. by the city council of Boston, as follows."

R. O. p. 3.

recorded, ex

SECT. 2. Every ordinance, and every amendment to an To be printed, ordinance, shall be printed under the supervision of the city published, and clerk as a city document within ten days after its passage, cept, etc. and, except when otherwise provided, shall be published by Ord. 1883, ch. 2. the city clerk for two weeks successively in three daily newspapers published in the city. The city clerk shall keep a continuous record of all the ordinances and amendments thereto. Every general revision or codification of the General reviordinances shall be exempted from the foregoing rules, and tions exempt. shall be published by the action of the city council in passing the same.

sions or codifica

These ordi

nances to be known as

SECT. 3. The ordinances contained in this chapter and in the following sixty-one chapters shall be known as the "Re"Revised Ordi- vised Ordinances of 1885," and, so far as their provisions are nances of 1885," the same in effect as those of previously existing ordinances, they shall be construed as continuations of those ordinances; but, subject to the said limitation and to the provisions of the next section, all ordinances of the city heretofore in force are hereby repealed.

their effect, etc. R. O. pp. 3, 4.

Acts done, rights

accrued, penal etc., etc., not to

ties incurred,

be affected. R. O. p. 4.

General penalty

ordinances.

SECT. 4. These Revised Ordinances shall not affect any act done, any right accrued, any penalty incurred, any suit, prosecution, or proceeding pending, or the tenure of office of any person holding office, at the time when they take effect, nor shall the repeal of any ordinance thereby have the effect of reviving any ordinance theretofore repealed or superseded.

SECT. 5. Whoever violates a provision of any ordinance of for breaches of the city, whether included in these Revised Ordinances or hereafter enacted, shall, unless other provision is expressly made, be liable to a penalty of not less than two nor more than fifty dollars for each offence.

R. O. p. 4.

Employers and other persons

liable to penalty

SECT. 6. When anything is prohibited in an ordinance, not only the persons actually doing the prohibited thing, but for breaches of. also the employers and all other persons concerned therein, shall be liable to the penalty prescribed.

R. O. p. 4.

Acts prohibited being done

SECT. 7. When in an ordinance anything is prohibited from being done without the license or permission of a cermay be licensed. tain officer or officers, such officer or officers shall have the power to license or permit such thing to be done.

without license

R. O. p. 4.

Construction of

and "streets."

SECT. 8. The words "street" and "streets," when used in words "street" an ordinance, shall be construed as including alleys, lanes, courts, public squares, public places, and sidewalks, unless such construction would be inconsistent with the manifest intent of the ordinance.

R. O. p. 4.

NOTES.

"The word ordinance, as applied to cities, shall be synonymous with the word by-law." P. S. c. 3, § 3, cl. 15.

The power to make ordinances is given by section 35 of the city charter, which provides that the city council shall have power to make all such needful and salutary by-laws or ordinances, not inconsistent with the laws of this commonwealth, as towns by the laws of this commonwealth have power to make and establish, and to annex penalties, not exceeding fifty dollars, for the breach thereof."

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The general provision giving to towns the power to make by-laws is to be found in P. S. c. 27, § 15, which enacts that towns may make by-laws for directing and managing the prudential affairs, preserving the peace and good order, and maintaining the internal police thereof." There are various other statute provisions giving towns authority to make by-laws in special cases; those provisions will be referred to under the ordinances on the special subjects to which they relate.

The earliest statute (passed in 1636) on the subject of the power of towns to make by-laws, provided that the freemen of towns might "make such orders as may concerne the well ordering of their owne townes, not repugnant to the lawes and orders here established." 1 Mass. Col. Rec. 172. In 1670 the statute authorized the freemen of towns" to make such laws and constitutions as may concern the welfare

of their town, provided they be not of a criminal, but of a prudential nature." Ancient Charters, p. 195. In the later Prov. St. 1692, c. 28, § 5, we find substantially the language of the present statute.

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What was meant by the "prudential affairs" of a town was considered in the case of Willard v. Newburyport 12 Pick. 227, 231; and it was there said by Chief-Justice Shaw that perhaps no better approximation to an exact description can be made, than to say that they embrace that large class of miscellaneous subjects, affecting the accommodation and convenience of the inhabitants, which have been placed under the municipal jurisdiction of towns by statute or usage. The same question was further discussed by Judge Shaw in Spaulding v. Lowell, 23 Pick. 71, 77. Under the general statute provisions above cited, it has been held that a city might pass an ordinance prohibiting the keeping of swine in certain districts within the city limits. Commonwealth v. Patch, 97 Mass. 221. Or prohibiting the removal of house dirt or offal by any person not licensed thereto by the mayor and aldermen. Vandine, Petitioner, 6 Pick. 187. Or prohibiting fast driving in the streets; Commonwealth v. Worcester, 3 Pick. 462, 473; provided the ordinance definitely fixes the rate of speed prohibited, and does not leave it open to inquiry into the circumstances of each case to determine whether the speed was illegal, which would "partake rather of the character of a law than of a by-law." Commonwealth v. Roy, 140 Mass. 432, 433, W. Allen, J., p. 433. Or regulating the driving of cattle through the streets. Commonwealth v. Curtis, 9 Allen, 266, 268, 271. - Commonwealth v. Bean, 14 Gray, 52, 53. Or prohibiting farmers, residing in the vicinity of the city, from occupying with their carts places in certain streets for the purpose of selling certain produce. Nightingale, Petitioner, 11 Pick. 168, 171. Commonwealth v. Rice, 9 Met. 253, 258. - Commonwealth v. Brooks, 109 Mass. 355, 358. Or forbidding any person to enter his private drain into a public sewer without a permit from the board of aldermen. Ranlett v. Lowell, 126 Mass. 431, 432. Or prohibiting any person from maintaining an awning before his house or store without the consent of the mayor and aldermen. Pedrick v. Bailey, 12 Gray, 161, 162. — Heald v. Lang, 98 Mass. 581. The power of the court to declare an ordinance void on the ground that it is unreasonable will be cautiously exercised. Commonwealth v. Robertson, 5 Cush. 438, 442.

An ordinance is binding upon strangers coming within the territorial limits of the city. Vandine, Petitioner, 6 Pick. 187.

An ordinance cannot become obsolete by non-enforcement or repeated violation. It remains in force until repealed. Commonwealth v. Davis, 140 Mass. 485, 486.

An ordinance which provided that each person who entered his private drain into a common sewer should pay, towards the expense of such sewer, a sum in proportion to the last tax valuation of his estate, has been held to be void, as being unequal and unreasonable. Boston v. Shaw, 1 Met. 130, 137.

So also an ordinance has been held to be void, which required the licensing of those who should engage in the business of carrying persons for hire between the city making the ordinance and an adjoining town. Commonwealth v. Stodder, 2 Cush. 562, 576.

For other cases in which by-laws have been held to be void, as being unreasonable, see Austin v. Murray, 16 Pick. 121, 125.- Boston v. Shaw, 1 Met. 130, 137.

A town by-law, which imposed a penalty on the sale, without a license, of intoxicating liquors within the town, has been held to be void, as being, independent of any statute provisions on the subject, an attempt to regulate by a by-law a subject not properly subject to such regulation. Commonwealth v. Turner, 1 Cush. 493.

An ordinance is not rendered void by being passed in violation of the joint rules and orders of the city council. Chandler v. Lawrence, 128 Mass. 213, 215. See also Bennett v. New Bedford, 110 Mass. 433, 437, 438. - Holt v. Somerville, 127 Mass. 408, 411.

As to the power of the city council to pass ordinances relative to the

tenure of office, duties, and compensation of city officers, see notes to chapters 4 and 6.

As to the power of the city council to pass ordinances relating to the duties of committees, see Worden v. New Bedford, 131 Mass. 23, 24.

As to the general powers of cities and towns to pass ordinances and by-laws, see also Dillon on Municipal Corporations, 3d ed., §§ 306, 407. Glover on Municipal Corporations, pp. 279, 280, 287–307.

Where an ordinance gives the mayor and aldermen authority to grant a license or permission to do a certain thing, the aldermen cannot delegate such authority to the mayor alone. Day v. Green, 4 Cush. 433, 438. "Where a by-law is entire, each part having a general influence over the rest, if one part is void, the whole is void; but where a by-law consists of several distinct and independent parts, though one or more of them is void, the rest is valid. And this rule is applicable to the different clauses of the same by-law; for, where it consists of several particulars, it is, to all purposes, as several by-laws, though the provisions are thrown together under the form of one." Metcalf, J., in Amesbury v. Bowditch Mut. Fire Ins. Co., 6 Gray, 596, 607. See also Commonwealth v. Dow, 10 Met. 382, and Dillon on Municipal Corporations, 3d ed., § 421.

An ordinance does not impose upon the city any greater liability in tort to third persons than would exist without it. Lyon v. Cambridge, 136 Mass. 419. See also Fallon v. Boston, 3 Allen, 38.

An ordinance takes effect immediately upon its passage, unless its language shows that it is to take effect at some later time. wealth v. Brooks, 109 Mass. 355, 357.

SECT. 1. It is provided by statute that the " enacting ordinances shall be such as may be prescribed by ordinance. c. 229, § 3.

Common

style" of St. 1881,

SECT. 2. It is provided by special statute that the "method of publishing" the ordinances “shall be such as the city shall by ordinance prescribe." St. 1881, c. 229, § 3. See also P. S. c. 27, § 23, requiring all by-laws of towns to be published. The requirement of this ordinance as to publication is directory only, and non-compliance with it does not necessarily invalidate an ordinance. Commonwealth v. Davis, 140 Mass. 485. P. S. c. 27, § 21, does not apply to ordinances of the City of Boston. See § 35 of City Charter and Commonwealth v. Davis, 140 Mass. 485.

SECT. 4. As to the effect of this section, so far as it relates to the tenure of office and the liability of the sureties on an officer's bond, see Cambridge v. Fifield, 126 Mass. 428, 430.

SECT. 5. The general limit to the penalties that may be imposed by ordinance is fifty dollars. City Charter, § 35. In special cases, however, the limit is sometimes fixed by statute at an amount greater or less than that just named.

An ordinance which authorized the imposition of a penalty of five dollars for every hour during which a person should keep his cart in a certain place, has been held to be void, as authorizing the punishment of a single continuous offence, occurring upon one and the same day, by a penalty which, being computed according to the terms of the ordinance, might exceed the limit ($20 in this case) of the penalty which the city was allowed to fix. Commonwealth v. Wilkins, 121 Mass. 356. The authority of the fire department being to make regulations subject to penalties provided for the breach of the city by-laws (St. 1850, c. 262), a regulation of that department imposing the forfeiture of a month's pay of one hundred dollars as a penalty for a violation of its rules, is void. Tyng v. Boston, 133 Mass. 372.

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St.

All penalties for breaches of ordinances are to be paid into the city treasury, unless otherwise provided by statute or ordinance." 1881, c. 229, § 4.

As to the mode of enforcing penalties for breaches of ordinances, see P. S. c. 27, §§ 19, 130. - P. S. c. 28, § 26. - P. S. c. 161, § 9. — P. S. c. 214, § 23-St. 1817, c. 50, § 3. Complaints for violations of ordinances are criminal prosecutions and to be construed with the same strictness as indictments. Commonwealth v. Bean, 14 Gray, 52. They must conclude "against the form of the Statute," etc. Commonwealth v. Gay, 5 Pick. 44. See St. 1886, c. 58, repealing P. S. c. 213, § 17, and St. 1885, c. 144.

SECTION 1. The form of warrants for calling meetings of the citizens of the several wards within their respective precincts shall be as follows:

A.M., then and there to give in their ballots for

o'clock

Hereof fail not, and have you there then this warrant. with

your doings thereon. Witness

Esquire, chairman of the board of

in the

aldermen of the City of Boston, this day of year of our Lord one thousand eight hundred and By order of the board of aldermen.

City Clerk.

turn.

R. O. p. 7.

SECT. 2. Every such warrant shall be served by a con- Service and restable, who shall, ten days at least before the time appointed for the meeting, post up an attested copy of the warrant at or near the polling-place in each voting precinct of the ward within which the meeting is to be held, and all such warrants shall be returned to the wardens of the several voting precincts on or before the time prescribed for the meetings called thereby.

to be fixed and

SECT. 3. The board of aldermen shall fix, within the limits Time of opening prescribed by law, the time when the polls in the several and closing polls voting precincts shall be opened and the time when they inserted in. shall be closed at each election, and they shall insert in every R. O. p. 7. warrant for an election a statement of the times so fixed.