Commonwealth v. Ducey

Gray, C. J. Under the St. of 1878, a. 244, the board of police commissioners of the city of Boston is vested with all the powers and duties' given to and imposed upon the mayor and aldermen by the St. of 1875, o. 99. To determine the construction and effect of the order of the board of police commissioners, in the case before us, it is therefore necessary to consider the provisions of the earlier statute, which, so far as they are material to the present inquiry, are as follows: Licenses to sell intoxicating liquors may be granted annually by the mayor and aldermen of cities or the selectmen of towns; and every license “ shall name the person licensed, shall set forth the nature of the license and the building in which the business is to be carried on,” and “ shall be expressed to be subject to the [272] following conditions: First. That the provisions in regard to the nature of the license, and the building in which the business may be carried on under it, shall be strictly adhered to. Second. That no sale of spirituous or intoxicating liquor shall be made between the hours of twelve at night and six in the morning, nor during any part of the Lord’s day, except that, if the licensee is also licensed as an innholder, he may supply such liquor to guests who have resorted to his house for food or lodging. Third. That no liquor, except such as is of good standard quality and free from adulteration, shall be kept or sold on the premises described in the license. Fourth. That no sale or delivery of liquor shall be made on the premises described in the license to a person known to be a drunkard, or to an intoxicated person, or to a minor. Fifth. That there shall be no disorder, indecency, prostitution, lewdness or illegal gaming on the premises described in the license, or on any premises connected therewith by any interior communication.” And each license to sell' liquors to be drunk on the premises “ shall be subject to the further condition that the licensee shall not keep a public bar, and shall hold a license as an innholder or common victualler.” St. 1875, c. 99, §§ 4, 6, 7. By § 9, each licensee is required to give bond, the condition of which, according to "the form set out in the statute, is that he “ shall well and truly comply with all the provisions of the act under which said license is issued, and also shall pay all damages which shall be recovered from him under and pursuant to the provisions of said act.” And by § 12, the mayor and aldermen or selectmen, “ after notice to the licensee, and reasonable opportunity for him to be heard by them, or by a committee of their number, may declare his license forfeited, upon proof satisfactory to them that he has violated, or permitted to be violated, any of the conditions thereof.” Section 11 is as follows: “ The mayor and aldermen of a city, or the selectmen of a town, or any police officer or constable specially authorized by them, may at any time enter upon the premises of any person licensed to sell under this act, to ascertain the manner in which such person conducts his business, and to preserve order. And such police officers or constables may at any time take samples for analysis from any liquors kept on such premises, and the vessel or vessels containing such samples shall [273] be sealed on the premises by the seal of the vendor, and shall remain so sealed until presented to the assayer for analysis. The city oi town shall pay for the samples so taken; provided such liquors are found to be of good quality, and free from adulter ation.’" The power conferred by this section upon the officers therein named, to “ enter upon the premises of any person licensed to sell under this act, to ascertain the manner in which such person conducts his business, and to preserve order,” does not authorize any search or seizure of person or property; and is therefore not open to the objection (which would apply as strongly to the mayor and aldermen or selectmen as to inferior officers) of not providing for a previous oath or affirmation, and a special designation of the persons or objects of search, arrest or seizure, as required by the fourteenth article of the Declaration of Rights. It is but a reasonable exercise of the police power, to preserve the public peace, and to see that the business carried on in the buildings described in the several licenses is conducted according to the conditions of the license, the provisions of the statute under which it is granted, and the stipulations of the bond executed by the licensee himself. As it would be manifestly impracticable, in the cities and the large towns of the Commonwealth, that this duty should be performed by the mayor and aldermen or selectmen in person, they are empowered to commit its performance to so many of the police officers or constables as they may think fit.. The words “ specially authorized ” merely denote the authority to be derived from the order of the mayor and aldermen or selectmen, as distinguished from the powers vested in police officers and constables by virtue of their offices under general laws. To construe these words as requiring every order of the mayor and aldermen or selectmen, authorizing an entry by constables or police officers upon the premises of licensees, to state the names of the officers and to designate particular buildings and times, would be to create unnecessary embarrassment, if not to defeat the whole purpose of the provision. The order of the board of police commissioners, of which the defendants complain, was therefore legal and valid, and authorized the police officers to enter upon the premises in question; and the defendants, in opposing and obstructing their entry, were [274] guilty of an assault. The evidence in this case does not require us to consider the validity of the provision of the statute for the taking of samples of liquors, nor whether the officers would have the right, after demanding and being refused admittance, to break outer doors. No objection to the form of the indictment appears to. have been taken in the court below, or is open in this court. Commonwealth v. Kane, 108 Mass. 423, 425. And the exceptions alleged are not to the instructions given, but only to the refusal to give the instructions requested. Thayer v. Boston, 124 Mass. 132, 148. As, for the reasons above stated, those instructions were rightly refused, the Exceptions must be overruled.