Heald v. Lang

Gray, J. This case falls within the principle of Pedrick v. Bailey, 12 Gray, 161; and the defendant is entitled to judgment. By the city charter of Lowell, the city council “ may make all such needful and salutary by-laws as towns by the laws of this Commonwealth have power to make, and annex penalties not exceeding twenty dollars for the breach thereof.” St. 1836, c. 128, § 8. In the lawful and reasonable exercise of the power thus granted, they passed an ordinance, providing, among other [583] things, that awnings over a sidewalk should not be put on before the first day of April, nor kept on after the first day of December, under a penalty of twenty dollars. City Ordinances of Lowell, c. 27, §§ 10, 29. By virtue of this ordinance, the plaintiff’s awning was an unlawful obstruction in the highway on the 26th of December 1866, when it was torn down by the defendant. By an amendment of the city charter, the city council were authorized to elect annually three surveyors of highways, who have all the powers of surveyors of highways in towns, among which are to “ dig up and remove whatever obstructs or encumbers a highway or town way, or hinders, incommodes or endangers persons travelling thereon.” St. 1846, c. 35, § 4. Gen. Sts. c. 44, § 8. The plaintiff’s awning being an unlawful obstruction, the surveyors thus chosen had authority to remove it if they saw fit, and their judgment in the matter cannot be revised by the court. They did order it to be removed, and the defendant, as city marshal and chief of police of the city, acting under the order of the surveyors of highways, and by direction of their chairman the mayor, after notice to the plaintiff, took down his awning. In doing this he was clearly justified. Judgment on the verdict.