The ordinance of the City of Boston which provides that "no
person shall, in or upon any of the public grounds, make any public
address," etc., "except in accordance with a permit from the mayor"
is not in conflict with the Constitution of the United States and
the first section of the Fourteenth Amendment thereof.
Page 167 U. S. 44
It was charged against the plaintiff in error, in the Municipal
Court of the City of Boston, that
"in and upon certain public grounds of said city, within said
district, called the 'Common,' he did make a public address, the
same 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 section 66 of the
Revised Ordinances of the City of Boston (1893), and reads as
follows:
"SEC. 66. No person shall, in or upon any of the public grounds,
make any public address, discharge any cannon or firearm, expose
for sale any goods, wares or merchandise, erect or maintain any
booth, stand, tent or apparatus for the purposes of public
amusement or show, except in accordance with a permit from the
mayor."
The proceedings were removed to the Superior Court of the County
of Suffolk, where the accused renewed a motion which he had
interposed in the municipal court to quash the complaint. The
grounds assigned in support of this motion were seven in number,
and, among other objections, it was substantially asserted that the
ordinance violated rights alleged to be secured to the accused by
the constitution of the state and by the Fourteenth Amendment 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
suctions 35 and 39 of chapter 448 of the acts passed by the
Legislature of Massachusetts in the year 1854, which sections are
as follows:
"SEC. 35. All other powers heretofore by law vested in the Town
of Boston or in the inhabitants thereof as a municipal corporation,
or in 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
Page 167 U. S. 45
concurrent vote, each board, as hereby constituted, having a
negative upon the proceedings of the other, and the mayor having a
veto power as hereinafter provided."
"More especially, they shall have power to make all such needful
and salutary bylaws and ordinances not inconsistent with the laws
of this commonwealth as towns, by the laws of this commonwealth,
have power to make and establish, and to annex penalties not
exceeding fifty dollars for the breach thereof, which bylaws 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. 39. The city council shall have the care and
superintendence of the public buildings, 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 Faneuil Hall. And the said city
council shall have power to purchase property, real or personal, 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 reserved to such refusal. But one of these requested
instructions set up alleged rights under the Constitution of the
United States, as follows:
"10. That said ordinance, and the proceedings under said
ordinance and in enforcement thereof, are in conflict with the
Constitution of the United States, and the first section of the
Fourteenth 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 exceptions taken during the
trial were certified to the Supreme Judicial Court of the
Commonwealth, where they were overruled.162 Mass. 510. The superior
court sentenced Davis to pay a fine and the costs of the
prosecution, and the cause was brought here for review.
Page 167 U. S. 46
MR. JUSTICE WHITE, after stating the facts in the foregoing
language, delivered the opinion of the Court.
In the brief of counsel for plaintiff in error, many presumed
errors are elaborately discussed, all of which, when analyzed, rest
on the assumption that there was a right in the plaintiff in error
to use the common of the City of Boston free from legislative or
municipal control or regulation. It is argued that:
"Boston Common is the property of the inhabitants 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, form time immemorial to a recent period, one of these ways.
For the making of this ordinance in 1862, and its enforcement
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 common apart
from the general enjoyment, which he was entitled, as a citizen, to
avail himself of along with others, and to the extent only which
the law permitted. On the contrary, the legislative act and the
ordinance passed in pursuance thereof, previously set out in the
statement of facts, show an assumption by the state of control over
the common in question. Indeed, the Supreme Judicial Court, in
affirming the conviction, placed its conclusion upon the express
ground that the common was absolutely under the control of the
legislature, which, in the exercise of its
Page 167 U. S. 47
discretion, could limit the use to the extent deemed by it
advisable, and could and did delegate to the municipality the power
to assert such authority. The court said:
"There is no evidence before us to show that the power of the
legislature over the common 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. 578, 580. 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 of less of
such control to the city or town immediately concerned. For the
legislature absolutely 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 proprietary rights
interfere, the legislature may end the right of the public to enter
upon the public place by putting an end to the dedication to public
uses. So it may take the less step of limiting the public use to
certain purposes.
See Dillon Mun.Corp. secs. 393, 407,
651, 656, 666;
Brooklyn Park Commissioners v. Armstrong,
45 N.Y. 234, 243, 244."
"If the legislature had power under the Constitution to pass a
law in the from of the present ordinance, there is no doubt that it
could authorize the City of Boston to pass the ordinance, and it is
settled by the former decision,
Commonwealth v. Davis, 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 prescribe. The Fourteenth Amendment to the
Constitution of the United States does not destroy the power of the
states to enact police regulations as to the subjects within their
control,
Barbier v. Connolly, 113 U. S.
27,
113 U. S. 31;
Minneapolis & St. Louis Railway Co. v. Beckwith,
129 U. S. 26,
129 U. S. 29;
Giozza v. Tiernan, 148 U. S. 657;
Jones v. Brim, 165 U. S. 182,
and does not have the effect of creating a particular and personal
right in the
Page 167 U. S. 48
citizen to use public property in defiance of the Constitution
and laws of the state.
The assertion that, although it be conceded that the power
existed in the state or municipality to absolutely control the use
of the common, the particular ordinance in question is nevertheless
void because arbitrary and unreasonable, in that it vests in the
mayor the power to determine when he will grant a permit, in truth,
while 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 authority 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 in error to the use of the common, is in
reason therefore conclusive of the controversy which the record
presents, entirely aside from the fact that the power conferred
upon the chief executive officer of the City of Boston by the
ordinance in question may be fairly claimed to be a mere
administrative function vested in the mayor in order to effectuate
the purpose for which the common was maintained and by which its
use was regulated.
In re Kollock, 165 U.
S. 526,
165 U. S.
536-537. The plaintiff in 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.
