Inhabitants of Clinton v. Welch , 166 Mass. 133 ( 1896 )

Barker, J.

The question as to the validity of the appeal from the district court having been waived, the only question for decision is whether the by-law for a breach of which the action is brought is repugnant to law. It is upon a subject which towns are authorized to regulate by establishing by-laws, and upon comparison with the provisions of the Public Statutes is within" the apparent scope of the authority of the town. See Pub. Sts. c. 53, §§ 8, 9. The defendant’s first contention is that, because' there are in fact no brick and but few concrete or other curbed or finished sidewalks in the town, while there are many gravel sidewalks, the by-law which requires the owners or tenants of those estates only which abut on brick, concrete, or other curbed . or finished sidewalks, to remove therefrom the snow and ice, is void because it imposes a burden upon a particular class of persons arbitrarily designated, and is therefore partial, oppressive, and unreasonable. The answer to this contention is that given in the decision in Goddard, petitioner, 16 Pick. 604, 511, “ that the duty required is á duty upon the person in respect to the property which he holds, . . . that it operates upon each and all in their turns, as they become owners or occupiers of such estates, and it ceases to be required of them, when they cease to be thus holders and occupiers of the estate, in respect to which the duty is required.” In that case the by-law did not apply in a large section of the city. We think the imposition of the duty upon the owners and occupants of estates abutting upon certain kinds of sidewalks only does not make the by-law void.

The defendant also contends that the by-law is void because it imposes as a fixed penalty the maximum penalty authorized by Pub. Sts. c. 53, § 9. He attempts to draw from the fact that under the provisions of Pub. Sts. c. 27, § 20, the town may recover of the delinquent in an action of contract the expense of performing the duty by its officials, not exceeding the penalty imposed by the by-law, the inference of law that a fixed penalty which may exceed the amount of the expense is invalid. In our opinion, this reasoning is unsound.

.Exceptions overruled.