
    Commonwealth vs. James Wilkins.
    Essex.
    
      Nov. 8. — 20, 1876.
    Colt, Devens & Lord, JJ., absent
    An ordinance of a city, prescribing a penalty “ of not less than one dollar, nor more than five dollars, for every hour ” that a person shall keep his wagon within the limits of the market, without the authority of the clerk of the market, after notice to remove and until removal, is in violation of a statute conferring power to pass reasonable by-laws and ordinances, with penalties not exceeding twenty dollars for one offence, and is void.
    Complaint to the First District Court of Essex, alleging that the defendant, on October 9, 1875, did, with a certain vehicle, occupy a stand within the limits of the market of the city of Salem; and, after being ordered by the clerk of the market to remove therefrom, refused so to do, and remained therein for the ¿pace of an hour thereafter.
    The complaint was founded upon an ordinance of the city of Salem, passed August 17, 1853, the third section of which is aa follows: “ The clerk of the market, under the direction of the mayor and aldermen, shall have the control of all carts, wagons and other carriages within the limits of the market, and may assign stands in the streets within the limits of the market for the sale of provisions and other articles; and no person shall occupy any other stand than the one so assigned, or keep any cart, wagon, sleigh or other vehicle or carriage, horse or other beast, within the limits of said market, for any longer space of time, or shall range or locate them in any other manner or form, than such as may be directed by the clerk of the market, under the penalty of not less than one dollar, nor more than five dollars, for every hour that shall elapse between the time the owner or person having the care of such vehicle or beast shall be notified to remove the same by the clerk of the market, and the time of the removal of the same.”
    At the trial in the Superior Court, on appeal, a verdict of guilty was returned, and Crardñer, J., at the request of the defendant, reported the case for the decision of this court.
    
      J. 0. Perkins, for the defendant.
    
      J. A. Grillis, for the Commonwealth.
   Gray, C. J.

The power conferred by the Legislature upon

the city council to pass by-laws and ordinances is limited to such as are reasonable, and the penalties prescribed by which do not exceed twenty dollars for one offence. Austin v. Murray, 16 Pick. 121. St. 1836, c. 42, § 20. Gen. Sts. c. 18, § 11; c. 19, § 2. A by-law or ordinance, imposing a penalty which may exceed this limit, is beyond the power conferred by the Legislature, un ■ reasonable, and wholly void. The ordinance before us undertakes to authorize the imposition of a penalty of not less than one dollar, nor more than five dollars, for every hour that a person shall keep his wagon in the market, without authority of the clerk of the market, after notice to remove and until actual removal. The offence thus punished is a single continuous offence; and the ordinance, affixing a penalty which, computed according to its terms, may exceed twenty dollars for a single offence upon one and the same day, is void. Mayor, ¿-a. of New York v. Ordrenan, 12 Johns. 122. It is therefore unnecessary to consider the other objections to the conviction.

Verdict set aside.  