Home COMMONWEALTH vs. LAWRENCE E. STONE.

369 Mass. 965

January 28, 1976

The defendant was held in contempt for refusing to answer questions put to him before a grand jury in Hampden County after he had been granted immunity from prosecution with respect to the violation of certain gaming laws. See G. L. c. 233, Sections 20C-20I. Sentence has been stayed pending his appeal, which we transferred here on our own motion. The defendant has been indicted by a grand jury of the United States District Court, District of Massachusetts, and the indictment is still pending. He argues that he has a right under the Fifth Amendment to the Constitution of the United States not to answer the questions put to him until such time as the Federal indictment is disposed of. It appears that indictment charged the defendant with making a false application for a credit card with the purpose of influencing the granting of credit to him by a bank insured by the Federal Deposit Insurance Corporation. The Commonwealth replies that nothing which the defendant, as an immunized witness, may say before the Hampden County grand jury may be used against him in the Federal proceeding and that, therefore, the defendant has no constitutional right to decline to answer the questions put to him before the Hampden County grand jury. The Commonwealth's argument is correct. Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 79 (1964). The Federal prosecutor will have "the affirmative duty to prove that the evidence [he] proposes to use [against the defendant] is derived from a legitimate source wholly independent of the compelled testimony" before the Hampden County grand jury. Kastigar v. United States, 406 U.S. 441, 460 (1972). Thus, there was no error in the judge's denial of the defendant's motion to continue the contempt proceeding until after disposition of the Federal charge.

Judgment affirmed.

Home COMMONWEALTH vs. RICHARD B. GULDEN.

369 Mass. 965

January 28, 1976

The defendant argues that the ordinance of the city of Newton under which he was convicted imposes an undue burden on interstate commerce and constitutes a denial of equal protection in violation of the Constitution of the United States. The ordinance provides in part that "[n]o hawker or

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peddler shall sell or offer for sale any goods, wares or merchandise . . . within five hundred feet of any playground of the city between the hours of 9:00 a.m. and 9:00 p.m. . . . ." The defendant admits that he violated the terms of the ordinance by selling ice cream from a truck parked in front of a city playground. The judge denied the defendant's motion to dismiss the complaint, without making any findings of fact. (1) In considering the defendant's argument based on the commerce clause (U.S. Const. art. I, Section 8), we will assume, as he asserts, that the ice cream he was selling had been "purchased from out-of-state manufacturers in their original package and [was] sold by him in their original package to his customers." There is no showing, however, of the burden, if any, imposed by the ordinance on interstate commerce. See Opinion of the Justices, 359 Mass. 778 , 784 n.1 (1971); Commonwealth v. Haseotes, 356 Mass. 230 , 233-234 (1969). Moreover, the commerce clause does not bar State regulation dealing with matters of local concern, even though the regulation indirectly and incidentally may affect interstate commerce and persons engaged in it. Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401 , 412 (1972). The Newton ordinance does not discriminate against interstate commerce and is addressed to a local problem, the safety of children in the vicinity of the city's playgrounds. This legitimate local purpose amply justifies the application of the ordinance to the defendant. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443-444 (1960). If in these circumstances the defendant is entitled to a judicial determination as to whether there is a less restrictive, adequate alternative for achieving the ordinance's purpose (compare Pike v. Bruce Church, Inc., supra at 142, and Dean Milk Co. v. Madison, 340 U.S. 349, 354 [1951], with Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524 [1959]), a point we assume in the defendant's favor, we conclude that there is no such alternative means in the present case consistent with the local objectives of traffic safety in the area of schools and playgrounds. (2) The ordinance does not deny the defendant the equal protection of the laws. The ordinance's discrimination between peddlers and retail stores is rational and bears a reasonable relationship to objectives intended to be accomplished. Mobil Oil Corp. v. Attorney Gen., supra at 417. McGowan v. Maryland, 366 U.S. 420, 425-426 (1961). See Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695 , 700-701 (1962).

Exceptions overruled.