
    Commonwealth, in Certiorari, versus William Worcester.
    The legislature have authority to enact, that the interest which an inhabitant of a city may have in a penalty for the breach of a by-law thereof, shall not disqualify him to act as a judge, juror, or witness, in a prosecution to recover such penalty.
    The city of Boston have authority to make a by-law prohibiting persons having the care of a wagon, cart, &e., from driving their horses on a trot or gallop in the streets of the city, such by-law not being in restraint of trade, but a reasonable regulation of it.
    Although the object of such by-law be to prevent passengers in the streets from being endangered by fast driving, yet in a prosecution on (he by-law it is not necessary to prove that any individual was actually endangered thereby.
    Upon an indictment for a breach of such by-law, evidence of the defendant's general character as a careful driver, is inadmissible.
    So of evidence of permission from the mayor and aldermen of the city to drive faster than the by-law allows.
    Whether a by-law be reasonable or not, is for the court to determine, and evidence to the jury on that question is inadmissible.
    An act of the legislature, providing that in prosecutions on the by-laws of Boston it shall not be necessary to set forth the by-law at large in the complaint, is not unconstitutional as conferring an exclusive privilege.
    Bo of St. 1817, c. 50, providing that such prosecutions may be in the name of the commonwealth: and that statute is not repealed by the act by which the town of Boston was incorporated as a city.
    Whether a complaint for a breach of a by-law of Boston, concluding against the form of the by-law in such case made and provided, be sufficient, without concluding also against the form of the statute, qucere.
    
    This was a writ of certiorari to the Municipal Court for the city of Boston.
    It appeared that a complaint was made to the Police Court by the city marshal, “ in behalf of the commonwealth of Massachusetts,” that Worcester, on the 28th of October, 1824, drove two or more horses drawing a cart, in one of the public streets of the city, “ on a trot, and not at a moderate foot pace, against the peace of said commonwealth, and the form of the by-laws of said city in such case made and provided.”
    The case was afterwards carried into the Municipal Court, and there Worcester, moved that the complaint and the pro ceedings thereon might be quashed ; — 1. Because neither the Police Court, nor the Municipal Court, had jurisdiction over the case ; — 2. Because no law incorporating and authorizing the supposed city of Boston to make by-laws, nor any by-law by the supposed city made, was fully, plainly, substantially, and formally set forth, according to the laws and the constitution ; — 3. Because the supposed by-law was null and void ; — and 4. Because the complaint was in other respects informal and wholly insufficient in law.
    This motion was overruled, and thereupon Worcester pleaded that he was not guilty of the offence charged in the complaint ; and the jury being called, he offered a challenge to the array, stating that the venire facias issued from the Municipal Court, and was served by a constable of the city, and that the jurors were selected and drawn from the jury box of the city by the mayor and aldermen of the city, and that the judge of that court, the mayor and aldermen, and the constable, were ratable and rated inhabitants of the city, to which city one half of the penalty or fine mentioned in the supposed by-law was to accrue, and that the mayor and aldermen and jurors were concerned in the event of the issue to be tried. The attorney for the commonwealth demurred to the challenge, and it was considered by the judge that the panel of the jurors be affirmed.
    The same objection was then made to the jurors individually, and to the witnesses on the part of the prosecution, but it was disallowed.
    The attorney for the commonwealth offered in evidence a copy of the record of a by-law, made by the selectmen of Boston on the 22d of May, 1801, which provides, “ that all carters and other persons having the care of any wagon, cart, truck, sled, or drag, passing through or in said streets of said town, shall drive their beast or beasts at a moderate foot pace, and shall not suffer them to go in a gallop or trot, under a penalty of not less than two, nor more than five dollars.” He likewise produced a copy of an order of the city council, of the 2d of May, 1822, that all the by-laws of the town of Boston which were in force on the 30th of April, 1822, should be in force in the city of Boston. These writings were objected to as being of no validity ; but they were admitted as sufficient evidence, that the by-law contained in the first writing had been adopted by the city.
    Isaac Vose, a witness on the part of the government, testified that, on the 28th of October, 1824, he saw Worcester standing in an empty cart drawn by two or more horses, which ne was driving on a fast trot, at the rate of from six to ten miles an hour, through Summer street; but that he saw no person in a situation to be endangered by such driving. He would not testify that all the horses were trotting. Simeon Dow, another witness on the part of the government, testified that Worcester, on the day above mentioned, was employed Dy him to drive a wood cart belonging to him ; that there were three horses harnessed to the cart ; that the leading horse usually walked so fast as to keep the others on a trot, but that he could not go, either on a walk or a trot, faster than at the rate of five miles an hour.
    Worcester then offered witnesses to prove that he was reputed and known to be a prudent, steady, and careful driver ; but their testimony was held to be inadmissible.
    He then offered to prove, that before the 28th of October, verbal communications had been made by the mayor and aldermen and city marshal, whose province it was to enforce the by-laws of the city, to the drivers of carts, and particularly to Worcester, that they might drive through the streets on a moderate trot, and that no prosecution should be instituted therefor. This evidence was rejected.
    He further offered to prove by witnesses, that if the drivers of such carts and carriages as are mentioned in the bylaw, should be obliged to drive on a walk, it would be prejudicial to the inhabitants of the city, by impeding their lawful business and raising the price of wood and other articles of consumption, and that if the by-law is construed so to restrain them, it is unreasonable and contrary to the public gooo and therefore void. This evidence was rejected.
    The judge delivered it as his opinion to the jury, that the evidence in the case was sufficient to prove the issue on the part of the commonwealth, provided they believed the testimony of the witnesses; that the town of Boston, as sufficiently appeared, had authority to make the by-law in question, and that there was sufficient evidence to show it had been adopted by the city council of the city of Boston ; that it was a good and valid by-law, and not unreasonable nor contrary to the public good.; that the true intent and meaning of it. was, to prohibit driving carts in the streets faster than at a moderate foot pace, so as to endanger persons standing or walking in the streets, and also to prevent the noise which would be occasioned by driving the horses on a trot or gallop ; and that notwithstanding that, Worcester was driving in such a manner as that no danger did, or was likely to ensue therefrom to any person in the street, nevertheless it was their province to determine, whether he was driving contrary to the true intent and meaning of the by-law ; and further, that if they believed that one of the horses could walk as fast as the others could trot, and was so walking during all the time that Vose saw Worcester driving, nevertheless, in such case, it was for them to decide, whether Worcester was guilty of driving the horses faster than at a moderate foot pace.
    The jury thereupon returned a verdict, that Worcester was guilty of the offence charged against him.
    
      Rand and W. Parker, for the defendant.
    Neither the Police Court nor the Municipal Court had jurisdiction over this case, the judges being inhabitants of the city of Boston, and therefore interested in the penalty to be recovered. Bill of Rights, art. 29; Day v. Savadge, Hob. 87; Hesketh v. Braddock, 3 Burr. 1847; Dr. Bonham’s case, 8 Co. 118; Hawkes v. Inhab. Kennebeck, 7 Mass. R. 461; Boston v. Tileston, 11 Mass. R. 468; Gage v. Gannett, 10 Mass. R. 176; Inhab. Lincoln v. Prince, 2 Mass. R. 544; Pearce v. Atwood, 13 Mass. R. 324; 1 Phillipps on Ev. (6th ed.) 50; Stark, on Ev. vol. 2, p. 776, vol. 3, p. 1062. No necessity exists for allowing them to have jurisdiction, for the proceed ings might have been instituted before a justice of the peace in the town of Chelsea ; so that this case is not like that of Commonwealth v. Ryan, 5 Mass. R. 90. If it should be held, however, that by virtue of any statute, no other court had jurisdiction, then we say the city was in fault in appropriating the penalty in such a manner as that no court can take cognizance of the case. 3 Burr. 1858. The St. 1821, c. 109, § 2, giving the Police Court jurisdiction over offences which may be cognizable by it according to the by-laws of the city, is unconstitutional, as applied to a case like this. But a breach of a by-law is not an offence. The King v. Sharples, 4 T. R. 777. The statute however might be construed to apply, where the penalty is appropriated in a different manner. Besides the pecuniary interest, the judges of these courts would be exposed to the suspicion of an improper bias, in consequence of their receiving salaries from the city. This complaint is in effect a civil process for the benefit of the city, and is brought improperly in the name of the commonwealth. The St. 1817, c. 50, § 3, allowing a remedy by indictment for a breach of the by-laws of the town of Boston, was virtually repealed when the town was changed into a city, and was likewise void, inasmuch as it suspended the operation of a general law by permitting the town to commence a process in its own favor before its own citizens. Holden v. James, 11 Mass. R. 396. Using the name of the commonwealth is a novel proceeding, which subjects the defendant in all cases to a loss of his costs, and throws on the commonwealth the burden of prosecuting for the benefit of the city. The city must be considered as a party ; The King v. Inhab. Hardwick, 11 East, 578; The King v. Inhab. Woburn, 10 East, 395; 2 Kyd on Corp. 159 et seqand the warrant from the Police Court, being tested by an inhabitant of the city, was not conformable to the constitution, pt. 2, c. 6, art. 5.
    The supposed offence is not “ fully and plainly, substantially and formally described ” to the defendant, as required by Bill of Rights, art. 12. Formally means technically. The by-law ought to have been set forth. The defendant could not know what by-law was referred to in the complaint. In England they go further, and set forth the act of incorporation. Kirk v. Nowill, 1 T. R. 118; Feltmakers’ Company v. Davis, 1 Bos. & Pul. 98; Com. Dig. Parliament, R 7 ; Holland’s case, 4 Co. 76 b; Prigge v. Adams, Skin. 350. The offence, being stated to have been committed with force and arms and against the peace of the commonwealth, would naturally be understood as an offence against the laws of the commonwealth. The St. 1824, c. 28, § 5, may be said to authorize the omission of the by-law, but that act was never accepted by the city, and it is void also within the principle of Holden v. James before cited.
    But the principal point in the case is, that the city government had no authority to pass such a by-law as the one on which these proceedings are founded. Similar questions have been much agitated in England ; but cities there have an origin so different from ours, that they do not furnish an exact precedent. It will be found that their right to make by-laws regulating or restraining trade, is derived from ancient usage or a grant from the king or parliament respecting the par ticular subject of any by-law. 1 Rol. Abr. 364, By-lawes, (A) pl. 5 ; Bosworth v. Hearne, 2 Str. 1085; Com. Dig. Bye-law, C, 4, 6, 7; Judgments of Orl. Bridgman, 323. It may seem from Com. Dig. Bye-law, B, 3, and 2 Kyd on Corp. 150, that cities may make such by-laws without a custom ; but it is believed that a custom may be traced, either in the cases themselves to which they refer, or in books of customs. Our towns, generally, and the city of Boston, have no power to make by-laws, except what is given to ■ them by the legislature. By St. 1785, c. 75, § 7, the inhabitants of each town are empowered to make “ necessary rules, orders and by-laws, for the directing, managing and ordering the prudential affairs of such town,” and to annex penalties, &c., provided they be not repugnant to the general laws of the government, and provided such orders and by-laws shall have the approbation of the Court of Sessions. By St. 1821, c. 110, § 15, the city of Boston has power “to make all such needful and salutary by-laws, as towns by the laws of this commonwealth have power to make and establish.” It hence appears, that the city has no greater powers on this subject, than towns generally, except where it may derive them from special statutes. The city has here assumed an authority which the legislature have reserved to themselves. On many subjects, equally suitable with the one under consideration to be regulated by by-laws, the legislature have either made ;gulations themselves, or expressly delegated their power by a special act; as in the case of livery stables, St. 1810, c. 124; pestilential diseases, St. 1792, c. 58; paving streets and removing obstructions in the same, St. 1809, c. 28, and St. 1799, c. 31; lighting streets, St. 1825, c. 3; chocolate mills, St. 1785, c. 15; wheeling on side walks, St. 1799, c. 31, § 5; raising goods into stores, St. 1816, c. 90; watchmen, St. 1801, c. 26. It would be impolitic to allow the city a general power to interfere with the right which every inhabitant of the commonwealth has to travel on the highway, and accordingly this subject has been frequently acted upon by the legislature. St. 1796, c. 82, § 8; St. 1791, c. 58. This by-law is unreasonable, because it is an impediment to carrying on business ; and it is unnecessary, for where any injury is suffered from improper driving, the general laws afford a remedy.
    The defendant’s counsel also insisted upon the other objections raised at the trial.
    Davis, Solicitor General,
    for the commonwealth. The pecuniary interest which the judges, &c., of the Police and Municipal Courts have, as inhabitants of the city, in one half of the penalty in question, may be considered as merely theoretical, it being much less in amount that our smallest denomination of money. If the supposed bias from receiving a salary from the city is to disqualify, it would not be in the power of the legislature to confer jurisdiction in sucn cases on any tribunal within the city ; and to establish a tribunal m another county for these petty causes, so that in the last resort they should be carried to Salem or Cambridge or Dedham, would be a practical denial of justice. But this case comes directly within Commonwealth v. Ryan, which is recognised in Pearce v. Atwood; for under St. 1821, c. 109, § 2, the prosecution must have been brought before the Police Court. No other court had jurisdiction, and it was not in the power of the city to make the by-law in such a manner as to transfer the jurisdiction to another county.
    Setting forth the by-law in the complaint is dispensed with by St. 1824, c. 28, § 5; and that act is not unconstitutional. If the legislature might pass a general law of the same kind, they might make a special law. The statute does not take away any rights ; it is remedial, and simply dispenses with a matter of form.
    In regard to the power of making by-laws, there is a distinction between corporations for public purposes, and private corporations for the management of property. There are no corporations anywhere similar to towns in New England. The power given to them to make by-laws must be construed with reference to their respective local situations, population, and wants; and this is contemplated by the second amendment of the constitution, making provision for the establishment of cities. The terms of the act incorporating the city of Boston are very general on this subject, and it should seem that any by-law required by its local situation and peculiar circumstances, and which this Court shall not deem to be oppressive, or unreasonable, or repugnant to the constitution or laws of the commonwealth, would be valid. The St. 1809, c. 28, § 2, 3, gives power to the selectmen of Boston to make by-laws on the very subject now in discussion. In many of the statutes referred to, in which special power to make by-laws has been given, money was required to be raised, as in those respecting lamps, watchmen, fire engines, &c. where it might well be doubted whether a town would have the power without a special statute; but I do not rely entirely on that ground It has been said, that by-laws like the one in question, made by cities in England, owe their authority to some ancient cust om ; but the case of Bosworth v. Hearne, as reported in Strange to that effect, is not supported by the report of the same case in Andr. 92, and is contrary to Freemantle v. Company of Silk-Throwsters, 1 Lev. 229; and it will be found that the validity of such a by-law does not depend on a custom, but on its being a reasonable by-law. See 2 Str. 1085, in notis. In the case of Pierce v. Bartrum, Cowp. 269, the mayor and common council of Exeter, under a general power given them by charter, anno 3 Eliz., to make bylaws, made a by-law that no person should within the walls of the city slaughter any beast, under certain penalties ; and it was held that this was a valid by-law, not being in restraint of trade, and that it was binding on strangers as well as members of the corporation.
    The St. 1817, c. 50, which provides that prosecutions or the by-laws of Boston may be in the name of the commonwealth, is continued in force by the city charter itself. The city is the same corporation as the late town of Boston. St. 1821, c. 110, § 1, 15 ; 1 Kyd on Corp. 232 et seq.
    
    Rand, in reply.
    The city may to some purposes be considered as the same corporation with the town, but not with regard to a law determining the form of prosecuting offences against a by-law of the town, so as to make it apply to a by-law of the city. But we contend that the city is in fact a new body. The whole organization of the municipal' government is changed by the act of incorporation. A town may have particular powers by special acts, and this may be necessary ; but its mere local situation does not confer on it powers different from those of other towns to make by-laws. If it did, we should have a great diversity of regulations, which would be extremely inconvenient. The case from Cowper allows to the city of Exeter a power which none of our towns would think of claiming without a special statute. In the case from. Levinz there was in fact a custom ; and the court, in saying that a custom was not necessary to sustain the by-law, mean a special custom. Without a general custom to regulate trade it could not have been good. Harrison v. Godman, 1 Burr. 12; Player v. Vere, T. Raym. 288; and the authorities cited in the note to Strange. The St. 1809, c. 28, is said to give the city power in this particular case, but if so, the proceedings must have been different; the complaint must have been made by the selectmen, or by the mayor and aider-men as their substitutes. The penalty too in that statute is differently appropriated.
   Wilde J.

delivered the opinion of the Court. Sundry exceptions have been taken to the proceedings brought before us by the certiorari in this case, and the general question is, whether such errors are disclosed by the record as will require ug lQ quasjj proceedings. [Here his Honor stated some of ths proceedings as above recited.] To these several de= cisiona of the court below, the defendant excepted, and now objects. They all depend on the same principle ; and tne question is, whether the judges of the Police and Municipal Courts, and the jurors, and the city officers, had, as members of the corporation to which a portion of the penalty accrued, any such interest as should disqualify them to act in their respective offices, and whether for the same reason the witnesses were rendered incompetent.

By the common law no person is allowed to sit as judge or juror, or to testify, in a cause in xvhich he is a party or has an interest. And a corporate interest, however inconsiderable and remote, is held to be sufficient to disqualify any member of a corporation. There are decisions the other way in relation to witnesses, but these decisions have been overruled. The Court will not relax the objection by inquiring into the degree of in • fluence which may be supposed to exist, because any degree of influence may create an improper bias, and should operate as a disqualification. But such a disqualification may be removed by the legislature; and so it was ruled in the case of Commonwealth v. Ryan, 5 Mass. R. 90; and in the case of The Inhabitants of Lincoln v. Prince, the Court recognise the same principle. So also has it been considered by the legislature. By St. 1792, c. 32, [see Revised Stat. c. 94, § 54,] it is provided, that the inhabitants of towns and members of societies may be admitted as competent witnesses in suits where the town or society is a party, or is interested in the event of the suit. And for more than thirty years this has been regarded as a valid, constitutional act.

It is objected, however, that in relation to the judges and jurors the authority of the legislature is restrained by the 29th article of the Bill of Rights, which declares, that it is the right of every citizen to be tried by judges as free, impartial, and independent, as the lot of humanity will admit. The -^qualify mg words in the declaration suppose that judges and jurors may have some degree of interest or feeling in all public prosecutions, for all are interested in the preservation of the peace ; but if this interest is inconsiderable and not such as may be reasonably supposed to create a bias, it is not to be regarded. “ It is for the legislature to say,” as Chief Justice Parsons remarks in the case of the Commonwealth v. Ryan, “ when this theoretic interest shall be no good objection to a juror. ” It is true that Lord Coke says, that if an act of parliament should ordain that the same person should be party and judge, or which is the same thing, judge in his own cause, it would be a void act of parliament; and Lord Holt says, that this is a very reasonable and true saying, and free from any extravagancy. And no doubt it is ; but no such objection applies to the present case. The city of Boston is not a party to the prosecution, nor liable for costs. It is only entitled to a portion of a very trifling penalty, which, if divided among the inhabitants, could not possibly create any bias. But the inhabitants have no right to claim any dividend of the penalty. Their interest therefore is imaginary, and exists only in theory. To suppose that a recovery in this case would reduce the amount of taxes hereafter to be assessed, is altogether extravagant. In making provision for the administration of justice within the city, the legislature have determined that such an interest should not operate as a disqualification. By the 4th section of St. 1824, c. 28, it is provided, that no person shall be disqualified from acting as magistrate, juror, or witness, in certain suits or prosecutions, by reason of any interest which he may have as an inhabitant of the city of Boston in the sum or sums of money to be recovered. We consider this as a valid and constitutional provision. But without relying on this provision, which perhaps is not applicable to this prosecution, it is a sufficient answer to the objection of interest, that jurisdiction is expressly given to the Police Court, and that the service of process from a justice in Chelsea within the city is prohibited. The witnesses in support of the prosecution were rendered competent by a former statute.

As to the evidence offered by the defendant, we think 1 was rightly excluded. It related to immaterial facts, which could have no influence except to mislead the jury. It was not a case involving the defendant’s character, and the permission of the mayor and aldermen attempted to be proved was without authority and void.

So the evidence adduced to prove the by-law unreasonable, was clearly inadmissible. It was for the Court to decide whether the by-law was reasonable or not; and evidence to the jury on this point was irrelevant. But the evidence as stated would have proved nothing unreasonable ir. the by-law. It is not a law in restraint of trade, but it is a reasonable regulation of it, made for the good government of the city and to prevent a public nuisance. If it may be presumed somewhat to enhance the expense of transportation, this is more than compensated by many public advantages which result from it, so that on the whole the regulation is clearly a beneficial one.

Another objection, on which great stress has been laid, relates to the form of the complaint, which ought, as it is urged, to have set out the by-law at large. But if the statute dispensing with the necessity of thus encumbering the record is a valid law, this objection must fail. Perhaps, even without the aid of the statute, the courts below, being composed of citizens of Boston, were bound to take notice of the by-law, though generally, no doubt, a by-law must be pleaded.

We have not, however, any doubt as to the dispensing power of the statute. That it is limited in its operation to the city of Boston, is no objection to its validity. Surely the power of the legislature to pass a local act cannot be questioned. It is not only the right, but the duty of that branch of the government, so to vary the provisions of law, as to meet, so far as is practicable, the peculiar exigencies of every portion of the community. The forms of administering justice are not required to be uniform throughout the commonwealth. The Municipal and Police Courts are peculiar to the city of Boston, but it has never been doubted that they were properly and constitutionally instituted. The object and effect of a local law is always to confer on a portion of the community some peculiar and exclusive benefits. All charters to coroorations are grants of exclusive privileges. But special laws are not void cn account of their limited operation. It is therefore no objection to the statute under consideration, that it is confined to the city of Boston.

Another objection made to the form of the complaint is, that it is in the name of the commonwealth. But this is expressly authorized by St. 1817, c. 50. This law is not repealed by the incorporation of the city. The act of incorporation, if it may be so called, did not annul the rights and privileges of the town. It only conferred on the then existing corporation a new name with additional powers.

We can find nothing erroneous in the judge’s instructions to the jury.

It is provided by the by-law, that all carters, and other persons, having the care of any cart, wagon, sled, or drag, passing through or in said streets of said town, shall drive their beast or beasts at a moderate foot pace, and shall not suffer them to go in a gallop or trot.

Vose testified that he saw the defendant standing in an empty cart, with the reins to guide the horses in his hands, and driving the same, which was drawn by two or more horses, on a fast trot, at the rate of from six to ten miles an hour ; and the judge instructed the jury, that the evidence, if believed, was sufficient to maintain the issue on the part of the commonwealth ; and most certainly it was. But another witness gave it as his opinion, that the horses could not have moved with so great rapidity as was supposed by Vose ; and the judge left it to the jury to decide upon the whole evidence, whether the defendant was guilty of driving the horses faster than at a moderate foot pace, contrary to the true intent and meaning of the by-law : and this was right.

It is also objected, that it was left to the jury to decide on the true meaning of the by-law; but there is no foundation for this objection. The judge gave his opinion as to the construction of the by-law, which was adopted by the jury, and the construction was correct. Besides, in criminal prosecutions the jury are the judges of both law and fact.

One objection more only remains to be considered. The complaint concludes against the form of the by-law in such case made and provided. At present we are inclined to the opinion, that this is not sufficient; and that it ought to have concluded also against the form of the statute, by which alone this prosecution can be maintained. But as this objection does not appear to have been made in the court below, and has not been argued, we will suspend the decision of the cause for the purpose of hearing counsel as to this point. 
      
       See Lincoln v. Prince, 2 Mass. R. (Rand’s ed.) 547, n. (a),
      
     
      
       See Lufkin v. Haskell, ante, 359, and note 1; Roscoe’s Dig. Crim. Evid 110 to 112; 1 Stark. Evid (5th Amer. ed.) 145, and note.
     
      
       See Revised Stat. p. 808, amendm. to c. 90, § 124.
     
      
       See Pierce v. Kimball, 9 Greenl. 54; Wales v. Belcher, 3 Pick. 508.
     
      
       See 1 Chitty’s Criminal Law, (3d Amer. ed.) 626, note.
     
      
       See Commonwealth v. Gay, 5 Pick. 44; 1 Chitty’s Crim. Law, (3d Amer ed ) 290, note.
     