Haberlil v. City of Boston

Hammond, J. The first question is whether the voting booth was lawfully in the public street. It was a one story structure, twenty-five feet long, about ten feet wide, and it was placed within the travelled part of the street, one side of it resting upon the curbstone of the sidewalk and the remainder extending out into the street. The defendant relies upon R. L. c. 11, § 186, which so far as material reads as follows: “ The aldermen in cities and the selectmen of every town divided into voting precincts shall, thirty .days at least before the annual state or city election and ten days at least before any special [360] election of a state or city officer therein, designate the polling place for each voting precinct and shall cause it to be suitably fitted up and prepared therefor. It shall be in a public, orderly and convenient portion of the precinct; but if no such polling place can be had within the precinct, they may designate a polling place in an adjoining precinct. No building or portion of a building shall be designated or used as a polling place in which intoxicating liquor has been sold within the thirty days preceding the day of the election.” This is a general law applicable throughout the Commonwealth except that in Boston this power is vested in the board of election commissioners of that city instead of the mayor and aldermen.* In construing this statute it is to be noted that there is no language explicitly providing that a polling place may be located in a street. The natural and easy reading of the language is that this polling place is to be located in a building and consequently in a place where buildings generally are located, namely, not in the travelled part of a street but outside the limits of the street, or at least outside the part worked for public travel. It is to be further noted that the possibility is contemplated that the officers charged with this duty may be unable to find in a precinct a suitable polling place, and in such case a polling place may be designated in an adjoining precinct. This possibility scarcely could arise if it were contemplated that the polling place could be located upon the travelled part of a street or highway. The business of voting has no necessary or natural relation to the purpose to which the travelled part of a highway is devoted, and the establishment of a polling place thereon which shall be large enough to meet the requirements of the statute as to the accommodations required for the voters and the election officers must interfere very materially with the public travel. The ground worked and used as the travelled part of a street is already devoted to one public purpose, and its use for this purpose is not to be interrupted except by language expressly or by necessary implication authorizing such interruption. In view of these considerations we are of opinion that the statute does not confer upon the election commissioners the right to [361] locate a polling booth in the travelled part of a public street. Nor could the vote of the aldermen passed September 11, 1901, confer any such authority. The case is clearly distinguishable from cases like Young v. Yarmouth, 9 Gray, 386; Cushing v. Bedford, 125 Mass. 526; Washburn v. Easton, 172 Mass. 525; and other similar cases cited by the defendant. The booth was illegally in the street, and may be properly found to constitute a defect. Griffin v. Boston, 182 Mass. 409, and cases there cited. This being so, it was the duty of the defendant to exercise reasonable diligence to protect the public travel. The questions of the due care of the plaintiff and of the negligence of the defendant were for the jury. Exceptions sustained. Footnotes [*] See Revised Charter of Boston, St. 1895, c. 449, §§ 3-8.