WILLIAM F. DAVIS, Plffi. in Err.,
v.
COMMONWEALTH OF MASSA¬ CHUSETTS.
(See S. C. Reporter’s ed. 43-48.)
Ordinance prohibiting speaking on public ground.
An ordinance prohibiting any person from mak¬ ing any public address on any public grounds of a city without a permit from the mayor is within the police power, and does not violate the 14th Amendment of the Constitution of the United States.
[No. 229.]
Argued and Submitted March 25, 1897. De¬ cided May 10, 1897.
IN ERROR to the Superior CcdiT of the County of Suffolk, State of Massachusetts, to review a judgment of that court, after ex ceptions thereto were overruled by the Supreme Judicial Court of that state, convicting William F. Davis of making a public address upon pub¬ lic grounds commonly called the “Common” of the city of Boston, in violation of an ordi¬ nance of that city. Affirmed.
See same case below, 162 Mass. 610 [26 L. R. A. 712],
Statement by Mr. Justice White:
44] *It was charged against the plaintiff in error, in the municipal court of the city of Bos¬ ton, that “in and upon certain public grounds of said city, within said district, called the ‘Com¬ mon,’” he “did make a public address, the sii me not being then and there in accordance with a permit from the mayor of said city, against the peace of said commonwealth, the form of the statute of said commonwealth and the revised ordinance of said city in such cases made and provided.”
The ordinance claimed to be violated was § 6b of the revi-ed ordinances of the city of Boston (1893i, and reads as follows:
“8ec. 66. No person shall, in or upon any of the public grounds, make any public address, discharge any cannon or firearm, ex¬ pose for sale any goods, wares, or merchandise, erect or maintain any booth, stand, tent, or apparatus for the purposes of public amuse¬ ment or show, except in accordance with a permit from the mayor.”
The proceedings were removed to the supe¬ rior court of the county of Suffolk, where the accused renewed a motion which he had in¬ terposed in the municipal court to quash the complaint. The grounds assigned in support of shis motion were seven in number, and, among other objections, it was substantially asserted that the ordinance violated rights al¬ leged to be secured to the accused by the Con¬ stitution of the state and by the 14th Amend¬ ment to the Constitution of the United States. The motion to quash being overruled and an exception noted, the accused was tried before the court and a jury.
At the trial the government put in evidence the ordinance heretofore referred to, and called the attention of the court to §§ 35 and 39 of
Notk.-As to police power of states; instances of as exercise,— see note to Barbier v. Connolly, 28: 923.
167 U. S.
chapter 448 of the acts passed by the legisla¬ ture of Massachusetts in the year 1854, which seclions are as follows:
“Sec. 35. All other powers heretofore by law vested in the town of Boston or in the in¬ habitants thereof as a municipal corporation, or iu the city council of the city of Boston, shall be and hereby are continued to be vested in the mayor, aldermen, and common council of the said city, to be exercised by *concur- [45 rent vote, each board, as hereby constituted, having a negative upon the proceedings of the other, and the mayor having a veto power aa hereinafter provided.
“More especially they shall have power to make all such needful and salutary by-laws and ordinances not inconsistent with the laws of this common wealth as towns by the laws of this commonwealth have power to make and establish, and to annex penalties not exceeding $50 for the breach thereof, which by-laws and ordinances shall take effect and be in force from and after the time therein respectively limited without the sanction or confirmation of any court or other authority whatsoever.
“Sec. 89. The city council shall have the care and superintendence of the public build¬ ings, and the care, custody, and management of all the property of the city, with power to lease or sell the same except the Common and Eaneuil Hall. And the said city council shall have power to purchase property, real or per¬ sonal, in the name and for the use of the city, whenever its interest or convenience may in their judgment require it.”
In behalf of the accused, eleven instructions were requested to be given to the jury, all of which were refused, and exceptions were re¬ served to such refusal. But one of these re¬ quested instructions set up alleged rights under the Constitution of the United States as fol¬ lows:
“10. That said ordinance, and the pro¬ ceedings under said ordinance, and in enforce¬ ment thereof, are in conflict with the Consti¬ tution of the United States, and the 1st section of the 14th Amendment thereof; that the power given to the mayor of the city of Boston by said ordinance is in derogation of the rights secured to the defendant by said amendment, and said ordinance is null and void.”
There was a verdict of guilty. The excep¬ tions taken during the trial were certified to the supreme judicial court of the common¬ wealth, where they were overruled. 162 Mass. 510 [28 L. R. A. 712], The superior court sentenced Davis to pay a fine and the costs of the prosecution, and the cause was brought here for review.
Mr. James F. Pickering for plaintiff in error.
Messrs. Hosea M. Enowlton, Attorney
General of Massachusetts, and George G. Travis, Assistant Attorney General of said state, for defendant in error.
Mr. Justice White delivered the opinion of the court:
In the brief of counsel for plaintiff in error many presumed errors are elaborately dis¬ cussed, all of which when analyzed rest on the assumption that there was a right in the plain-
71
4ft-48 Supreme Court of
tiff in eiror to use the Common of the city of Boston free from legislative or municipal con trol or regulation. It is argued that:
“Boston Common is the property of the in¬ habitants of the city of Boston, and dedicated to the use of the people of that city and the public in many ways, and the preaching of the gospel there has been, from time immemorial to a recent period, one of these ways. For the making of this ordinance in 1882 and its en forcement against preaching since 1885, no reason whatever has been or can be shown.”
The record, however, contains no evidence showing the manner in which the ordinance in question had been previously enforced, nor does it include any proof whatever as to the nature of the ownership in the Common from which it can be deduced that the plaintiff in error had any particular right to use the Com¬ mon apart from the general enjoyment which be was entitled, as a citizen, to avail of along with others and to the extent only which the law permitted. On the contrary, the legisla¬ tive act and the ordinance passed in pursuance thereof, previously set out in the statement of facts, show an assumption by the state of con¬ trol over the Common in question. Indeed, the supreme judicial court, in affirming the convic¬ tion, placed its conclusion upon the express ground that the Common was absolutely under the control of the legislature, which, in the exer- 47] cise of *its discretion, could limit the use to the extent deemed by it advisable, and could and did delegate to the municipality the pow er to assert such authority. The court said:
“There is no evidence before us to show that the power of the legislature over the Com¬ mon is less than its power over any other park dedicated to the use of the public or over public streets the legal title to which is in a city or town. Lincoln v. Boston, 148 Mass. 678, 580 [3 L. R, A. 257]. As representative of the public it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town im¬ mediately concerned. For the legislature ab- solu ely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprie ary right in'erfercs the legislature may end the right of the public to enter upon the public place by putting an end to the dedi¬ cation to public uses. So it may take the lesser step of limiting the public use to certain pur¬ poses. See Dill. Mun. Corp. £§ 393, 407,551, 656, 666; Brooklyn Bark Comrs. v. Armstrong, 45 N. Y. 234, 243, 244 [6 Am. Rep. 70]. If the legislature had power under the Const! tution to pass a law in the form of the present ordinance, there is no doubt that it could au¬ thorize the city of Boston to pass the ordinance, and it is settled by the former decision {Com. v. Dams, 140 Mass. 485) that it has done so.”
It is therefore conclusively determined there was no right in the plaintiff in error to use the Common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to pre¬ scribe. The 14th Amendment to the Constitu¬ tion of the United States does not destroy the 72
TBK UNITED STATES. OCT. TERM,
power of the states to enact police regulations as to the subicc's within their control {Bar- bier v. Connolly , 113 U. S. 27. 31 [28:925]; Minneapolis di St. L. R Co. v. Beckwith, 129 U. S. 26, 29 [32: 585, 586]; Giozza v. Tiernan, 148 U. S. 657 [37: 599J; Jones v. Brim, 165 U. S. 180 [41 : 677J), and does not have the ef¬ fect of creating a particular and personal right in the ^citizen to use public property in de [48 fiance of the Constitution and laws of the state.
The assertion that although it be conceded that the power existed in the state or munici¬ pality to absolutely control the use of the Com¬ mon, the particular ordinance in question is nevertheless void because arbitrary and un¬ reasonable iu that it vests in the mayrnr the power to determine when he will grant a per¬ mit, in truth, whilst admitting on the one hand the power to control, on the other denies its existence. The right to absolutely exclude all right to use necessarily includes the author¬ ity to determine under what circumstances such use may be availed of, as the greater power contains the lesser. The finding of the court of last resort of the state of Massachusetts being that no particular right was possessed by the plaintiff iD error to the use of the Com¬ mon, is in reason, therefore, conclusive of the controversy which the record presents, en¬ tirely aside from the fact that the power con ferred upon the chief executive officer of the city of Boston by the ordinance in question may be fairly claimed to be a mere ad minis trative function vested in the mayor in order to effectuate the purpose for which the common was maintained and by which its use was reg¬ ulated. Expartc Kollock, 165 U. S. 526, 536, 537 [41 : 813, 816, 817). The plaintiff iu error cannot avail himself of the right granted by the state and yet obtain exemption from the lawful regulations to which this right on his part was subjected by law.
Affirmed.