Section 12 of ordinance No. 10, of Eureka City, providing
that
"No person shall move any building or frame of any building,
into or upon any of the public streets, lots or squares of the
city, or cause the same to be upon, or otherwise to obstruct the
free passage of the streets, without the written permission of the
mayor, or president of the city council, or in their absence a
councillor. A violation of this section shall on conviction,
subject the offender to a fine of not to exceed twenty-five
dollars,"
is not in conflict with the provisions of the Constitution of
the United States.
Section 12 of Ordinance No. 10 of Eureka City, Utah, provided as
follows:
"No person shall move any building or frame of any building,
into or upon any of the public streets, lots or squares of the
city, or cause the same to be upon, or otherwise to obstruct the
free passage of the streets, without the written permission of the
mayor, or president of the city council, or in their absence a
councilor. A violation of this section shall on conviction, subject
the offender to a fine of not to exceed twenty-five dollars."
The plaintiff in error was tried for a violation of the
ordinance in the justice's court of the city. He was convicted
and
Page 173 U. S. 33
sentenced to pay a fine of twenty-five dollars. He appealed to
the District Court of the First Judicial District of the Territory
of Utah.
On the admission of Utah into the Union, the case was
transferred to the Fifth District Court of Juab County, and there
tried on the 24th of October, 1896, by the court without a jury, by
consent of the parties.
Section 12,
supra, was offered and admitted in
evidence. Plaintiff in error objected to it on the ground that it
was repugnant to Section 1 of Article XIV of the Constitution of
the United States in that it delegated an authority to the mayor of
the city, or, in his absence, to a councilor.
There was also introduced in evidence an ordinance establishing
fire limits within the city, providing that no wooden buildings
should be erected within such limits except by the permission of
the committee on building, and providing further for the alteration
and repair of wooden buildings already erected. The ordinance is
inserted in the margin.
*
Page 173 U. S. 34
The evidence showed that the plaintiff in error was the owner of
a wooden building of the dimensions of twenty by sixteen feet,
which was used as a dwelling house. It was constructed prior to the
enactment of the ordinances above mentioned. The evidence further
showed that plaintiff in error applied to the mayor for permission
to move the building along and across Main Street in the city to
another place within the fire limits. The mayor refused the
permission, stating that, if the desire was to move it outside of
the fire limits, permission would be granted. Notwithstanding the
refusal, the plaintiff in error moved the building, using blocks
and tackle and rollers, and, in doing so, occupied the time between
11 a.m. and 3 p.m. At the place where the building stood
originally, the street was fifty feet from the houses on one side
to those on the other, part of the space being occupied by
sidewalks, and the balance by the traveled highway. The distance of
removal was two hundred and six feet along and across Main Street.
Eureka City was and is a mining town, and had and has a population
of about two thousand. It was admitted that the building was moved
with reasonable diligence.
The plaintiff in error was again convicted. From the
judgment
Page 173 U. S. 35
of conviction he appealed to the supreme court of the state,
which court affirmed the judgment, and to the judgment of
affirmance this writ of error is directed.
Eureka City has no special charter, but was incorporated under
the general incorporation Act of March 8, 1888, and among the
powers conferred by it on city councils are the following:
"10. To regulate the use of streets, alleys, avenues, sidewalks,
cross-walks, parks, and public grounds."
"11. To prevent and remove obstructions and encroachments upon
the same."
The error assigned is that the ordinance is repugnant to the
fourteenth amendment of the Constitution of the United States
because "thereby the citizen is deprived of his property without
due process of law," and "the citizen is thereby denied the equal
protection of the law."
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
Whether the provisions of the charter enabled the council to
delegate any power to the mayor is not within our competency to
decide. That is necessarily a state question, and we are confined
to a consideration of whether the power conferred does or does not
violate the Constitution of the United States.
It is contended that it does because the ordinance commits the
rights of plaintiff in error to the unrestrained discretion of a
single individual, and thereby, it is claimed, removes them from
the domain of law. To support the contention, the following cases
are cited:
Matter of Frazee, 63 Mich. 396;
State ex
Rel. Garrabad v. Dering, 84 Wis. 585;
Anderson v.
Wellington, 40 Kan. 173;
Baltimore v. Radecke, 49 Md.
217;
Chicago v. Trotter, 136 Ill. 430.
Page 173 U. S. 36
With the exception of
Baltimore v. Radecke, these cases
passed on the validity of city ordinances prohibiting persons
parading streets with banners, musical instruments, etc., without
first obtaining permission of the mayor or common council or police
department. Funeral and military processions were excepted,
although in some respects they were subjected to regulation. This
discrimination was made the basis of the decision in
State v.
Dering, but the other cases seem to have proceeded upon the
principle that the right of persons to assemble and parade was a
well established and inherent right, which could be regulated, but
not prohibited or made dependent upon any officer or officers, and
that its regulation must be by well defined conditions.
This view has not been entertained by other courts, or has not
been extended to other instances of administration. The cases were
reviewed by Mr. Justice McFarland, of the Supreme Court of
California, in
In re Flaherty, 105 Cal. 558, in which an
ordinance which prohibited the beating of drums on the streets of
one of the towns of that state, "without special permit in writing
so to do first had and obtained from the president of the board of
trustees," was passed on and sustained. Summarizing the cases, the
learned justice said:
"Statutes and ordinances have been sustained prohibiting awnings
without the consent of the mayor and aldermen (
Pedrick v.
Bailey, 12 Gray 161); forbidding orations, harangues, etc., in
a park without the prior consent of the park commissioners
(
Commonwealth v. Abrahams, 156 Mass. 57), or upon the
common or other grounds, except by the permission of the city
government and committee (
Commonwealth v. Davis, 140 Mass.
485);"
"beating any drum or tambourine, or making any noise with any
instrument for any purpose whatever, without written permission of
the president of the village"
"on any street or sidewalk (
Vance v. Hadfield, 22 N.Y.
858, 1003; 4 N.Y.Supp. 112); giving the right to manufacturers and
others to ring bells and blow whistles in such manner and at such
hours as the board of aldermen or selectmen may in writing
designate (
Sawyer v. Davis, 136 Mass.
Page 173 U. S. 37
239); prohibiting the erecting or repairing of a wooden building
without the permission of the board of aldermen (
Hine v. The
City of New Haven, 40 Conn. 478); authorizing harbor masters
to station vessels and to assign to each its place (
Vanderbilt
v. Adams, 7 Cow. 349); forbidding the occupancy of a place on
the street for a stand without the permission of the clerk of
Faneuil Hall Market (
In re Nightingale, 11 Pick. 168);
forbidding the keeping of swine without a permit in writing from
the board of health (
Quincy v. Kennard, 151 Mass. 563);
forbidding the erection of any kind of a building without a permit
from the commissioners of the town through their clerk
(
Commissioners v. Covey, 74 Md. 262); forbidding any
person from remaining within the limits of the market more than
twenty minutes unless permitted so to do by the superintendent or
his deputy (
Commonwealth v. Brooks, 109 Mass. 355)."
In all of these cases, the discretion upon which the right
depended was not that of a single individual. It was not in all of
the cases cited by plaintiff in error, nor was their principle
based on that. It was based on the necessity of the regulation of
rights by uniform and general laws -- a necessity which is no
better observed by a discretion in a board of aldermen or council
of a city than in a mayor, and the cases therefore are authority
against the contention of plaintiff in error. Besides, it is
opposed by
Davis v. Massachusetts, 167 U. S.
43.
Davis was convicted of violating an ordinance of the City of
Boston by making a public address on the "Common" without obtaining
a permit from the mayor. The conviction was sustained by the
Supreme Judicial Court of the commonwealth, 162 Mass. 510, and then
brought here for review.
The ordinance was objected to, as that in the case at bar is
objected to, because it was "in conflict with the Constitution of
the United States and the first section of the fourteenth amendment
thereof." The ordinance was sustained.
It follows from these views that the judgment of the Supreme
Court of Utah should be, and it is,
Affirmed.
*
"Section 1. That the following boundaries are hereby established
as the fire limits of Eureka City, to-wit, commencing at a point on
Main Street of said city, where said street crosses the Union
Pacific Railway track. and opposite or nearly opposite, the
Keystone Hoisting Works, thence running in an easterly direction
along said Main Street to a point where said street intersects the
road or street easterly of the site now occupied by the M. E.
Church building, the northerly and southerly boundaries of said
fire limits to be two hundred feet on each side of said Main Street
for said distance."
"SEC. 2. Every building hereafter within the fire limits of said
city shall be of brick, stone, iron, or other substantial and
incombustible material, and only the following wooden buildings
shall be allowed to be erected, except as hereinafter provided,
viz.: sheds to facilitate the erection of authorized
buildings, coal sheds not exceeding ten feet in height, and not to
exceed one hundred feet in area, and privies not to exceed thirty
feet in area, and ten feet in height, and all such sheds and
privies shall be separate structures:
provided, that any
person desiring to erect a building of other material than those
above specified within said fire limits shall first apply to the
committee on building within said fire limits of the city for
permission so to do, and if the consent of the committee on
building within said fire limits shall be given, they shall issue a
permit, and it shall thereupon be lawful to erect such building
under such regulations and restrictions as the committee on
building within said fire limits may provide."
"SEC. 3. Any wooden building already within said fire limits
shall only be altered or repaired in such a manner that neither
area nor height be increased without the consent of the said
committee on building within said fire limits."
"SEC. 4. The said committee on building within said fire limits
shall have the power to stop the construction of any building, or
the making of alterations or repairs on any building where the same
is being done in violation of the provisions of this ordinance, and
any owner, architect, or builder, or others who may be employed,
who shall assist in violation or noncompliance with the provisions
of this ordinance shall be subject to a fine for every such
violation or noncompliance, of not less than ten nor more than one
hundred dollars."
"SEC. 5. That there shall be a committee consisting of three
members of the council appointed by the mayor and confirmed by the
council, to be known as the 'Committee on Building within the Fire
Limits of Eureka City,' and that said committee be appointed
immediately upon the taking effect of this ordinance."
"SEC. 6. This ordinance shall take effect and be in force from
and after its first publication in the Tintic Miner."
Passed and approved June 4, 1894.
