
    [No. 21069.
    In Bank.
    January 6, 1895.]
    In the Matter of JOHN H. FLAHERTY, on Habeas Corpus.
    Municipal Ordinance—Beating Drums in Street—Police Power—Permission oe President of Board.—A municipal ordinance forbidding the beating of drums in the traveled streets of a city, without the permission of the president of the board of trustees of the municipality, is a valid exercise of police power.
    Application to the Supreme Court for a discharge from imprisonment upon a writ of habeas corpus.
    
    The facts are stated in the opinion of the court.
    
      H. V. Morehouse, Hiram D. Tuttle, and J. E. Richards, for Petitioner.
    The ordinance in question is unreasonable, oppressive, and discriminating, and leaves it to the arbitrary will of the president of the board of trustees to grant the permission thereby required, and is, therefore, not a proper exercise of the legislative power of the city. (State v. Dering, 84 Wis. 585; 36 Am. St. Rep. 948; Barbier v. Connolly, 113 U. S. 27; Yick Wo v. Hopkins, 118 U. S. 356; Mayor of Baltimore v. Radecke, 49 Md. 217; 33 Am. Rep. 239; Anderson v. City of Wellington, 40 Kan. 173; 10 Am. St. Rep. 175; In re Frazee, 63 Mich. 396; 6 Am. St. Rep. 310; City of Chicago v. Trotter, 136 Ill. 430; Rich v. Naperville, 42 Ill. App. 222.)
    
      C. C. Bennett, for Respondent.
    The ordinance in question is constitutional and valid, and it was within the power of the city to pass it. Ordinances involving similar questions have been repeatedly upheld. (Commonwealth v. Davis, 140 Mass. 485; Vance v. Hadfield, 4 N. Y. Supp. 112; Commonwealth v. Plaisted, 148 Mass. 375; 12 Am. St. Rep. 566; State v. Yopp, 97 N. C. 477; 2 Am. St. Rep. 305; State v. White, 15 Am. & Eng. Corp. Cas. 9; State v. Earnhardt, 107 N. C. 789; 1 Dillon on Municipal Corporations, 3d ed., sec. 374, note; Commonwealth v. McCafferty, 145 Mass. 384; Commonwealth v. Abrahams, 156 Mass. 57; Pedrick v. Bailey, 12 Gray, 161; Town Council v. Pressley, 33 S. C. 56; 26 Am. St. Rep. 659; Ex parte Smith, 38 Cal. 702; In re Linehan, 72 Cal. 114; Ex parte Delaney, 43 Cal. 478; Ex parte Casinello, 62 Cal. 538; Nightingale, Petitioner, 11 Pick. 168; Commonwealth v. Brooks, 109 Mass. 355; Quincy v. Kennard, 151 Mass. 563; Hasty v. City of Huntington, 105 Ind. 540; Town of Palatine v. Kreuger, 121 Ill. 72; 2 Dillon on Municipal Corporations, 3d ed., sec. 713; White v. Kent, 11 Ohio St. 550; Lowell v. Simpson, 10 Allen, 88; St. Paul v. Smith, 27 Minn. 364; 38 Am. Rep. 296; Richmond etc. R. R. Co. v. Richmond, 96 U. S. 521; Reynolds v. United States, 98 U. S. 145.)
   McFarland, J.,

The petitioner is under sentence of imprisonment for a violation of an ordinance of the city of Redlands, and seeks to be discharged on habeas corpus upon the ground that said ordinance is wholly invalid and void.

The ordinance is entitled “An ordinance to promote safety and security to public travel by prohibiting the beating of drums and certain other noises on the traveled streets or avenues of the city of Eedlands, without special permission therefor, and authorizing such permission in certain cases”; and in the body of the ordinance it is made an offense punishable by fine or imprisonment for any person to, among other things, “ beat a drum” upon any traveled street of the city “without special permit in writing so to do first had and obtained from the president of the board of trustees of said city, which permit the president of said board may grant whenever, in his judgment, the issuance of the same shall not conflict with the aforesaid purposes of this ordinance, and not otherwise, provided, that such permit shall specify the time when, and the street or avenue where, any of said instruments shall be so used as aforesaid.” Petitioner was convicted of beating a drum on the traveled streets of said city without a permit, contrary to the said provisions of said ordinance. It appears from the petition that petitioner had been in the habit of beating a drum on the streets daily; and that upon his application to the president of the board for a permit “ to engage in beating a drum, as he had been heretofore doing,” the permit was refused, although, as appears from the petition, he was given a permit to beat his drum upon a certain occasion. He claims the right to beat his drum—not on special occasions only, as other people—but every day, without a permit, and despite the ordinance.

There is no need of discussing the general power and right of a city to prohibit such noises on the streets as those made by the beating of drums. We do not understand counsel for petitioner as contesting such power. At all events it certainly exists. But the point urged by petitioner is that the ordinance is void, because it gives a certain officer authority to "give permits to beat drums on special occasions; and this position is the only one which needs examination. It is contended that the clause authorizing a permit is partial and oppressive because it gives too much power to the president of the board, and is violative of general constitutional principles against abridging the privileges of citizens, depriving a person of his rights without due process of law, denying him the equal protection of the law, etc.

The continuous or daily beating of drums on the streets of a city would be an intolerable nuisance, endangering the safety of teams and the occupants of vehicles drawn by animals, as well as of pedestrians liable to be injured by runaways, and stunning the ears with din so constant as to be almost insufferable. On the other band there is usually no objection to such noises on a few special occasions, either when there are patriotic celebrations generally participated in by all the people, or processions of a part of the people united in civic societies, political parties, etc. These occasions are comparatively few and usually well known, so that people are prepared for them; and the processions and drums are generally preceded by policemen who give notice of the approaching uproar. But how can these occasions be provided for? By an ordinance which shall anticipate and state in detail beforehand every occasion on which the noises may be made? Such a thing is practically impossible. No human foresight could conjure up all the circumstances under which the people might want a band (with a drum) on the streets. It would not do to name legal holidays alone; that, for obvious reasons, would be too narrow a provision. Neither would it do to single out, in addition to legal holidays, certain other enumerated days, as, for instance, the first Monday of every month; the president of the United States or some other distinguished man whose advent should be'celebrated with drums might come on Tuesday. Neither would it be possible to schedule the kinds or characters of occasions of which drumbeats would be a necessary part. And so the practical result of petitioner’s contention is that all persons must be allowed to beat drums on all occasions as they may choose, or no person must be allowed to beat a drum on any occasion whatever.

In dealing with this and similar questions—such as repairs of wooden buildings within fire limits, carrying concealed weapons, using public buildings and grounds, ringing bells on buildings where many operatives are employed, haranguing on the streets by lecturers, preachers, etc., singing or playing on musical instruments on the streets, and the like—our federal, state, and municipal governments have always recognized the practical impossibility of providing in advance for proper exceptional cases, and the necessity of giving to a public officer some discretion in the premises; and laws and ordinances based on that principle have nearly always been upheld when subjected to judicial test. Laws are not made upon the theory of the total depravity of those who are elected to administer them; and the presumption is that municipal officers will not use these small powers villainously and for purposes of oppression and mischief. Of course it is impossible to state in terms the extent or the limitation of what is known as the police power; and courts have not attempted to do it. Whether or not that power has been exceeded in particular cases must be determined as the cases arise; and, to find the law applicable to a particular case, we must look to see what courts have held in similar cases. And we find that statutes and ordinances similar in character to the one in question in the case at bar have been sustained in most of the cases to which our attention has been called. We will notice a few of them. ,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 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. 239; 49 Am. Rep. 27); prohibiting the erecting or repairing of a wooden building without the permission of the board of aldermen (Hine v. 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 (Nightingale, Petitioner, 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 etc. 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 Barbier v. Connolly, 113 U. S. 27, the supreme court of the United States had under consideration an ordinance which, among other things, prohibited the carrying on of the business of a laundry without certificates from the health officer and the board of fire wardens; and, while that part of the ordinance was not directly involved, the court say as follows: “In the case before us the provisions requiring certificates from the health officer and the board of fire wardens may, in some instances, be unnecessary, and the changes to be made to meet the conditions prescribed may be burdensome, but, as we have seen, this is a matter for the determination of the municipality in the execution of its police powers, and not the violation of any substantial right of the individual.” Many other authorities to the same point as those above noticed might be collected outside of the decisions in our own state.

In this state it was held in Ex parte Casinello, 62 Cal. 538, that an ordinance giving to the superintendent of public streets the power to determine where, either on a public street or on private premises, any person could deposit any glass, broken ware, dirt, rubbish, garbage, or filth,” was a salutary and valid “ police regulation.” In the case of In re Guerrero, 69 Cal. 88, it was held that the city council had authority to make the issuance of a license for the sale of liquors conditional upon the appellant's obtaining a permit from the board of police commissioners. In Ex parte Tuttle, 91 Cal. 589, an ordinance prohibiting the selling of pools on horseraces except within the inclosure of a racetrack where the race is to be run was upheld, and it was declared not to be void because its effect might be “ to confer a special privilege or benefit upon those who own or control the racecourses.” In Ex parte Fiske, 72 Cal. 125, an ordinance was upheld which prohibited the repair of a wooden building within certain fire limits without permission in writing signed by a majority of the fire wardens, and approved by a majority of the committee on fire department and the mayor. In that case we, said as follows: “ It is clear, however, that a literal compliance with the regulation prohibiting the repairing of a wooden building might work, in some instances, useless hardships. The repair of a leaking roof or a broken window would be necessary to the comfort and health of a family, without enhancing the danger which the framers of the ordinance sought to provide against; and repairs of a more extensive character might be made to particular houses standing in particular localities, without increasing the fire risks. And it is equally clear that no general rule could be established beforehand that would meet the emergencies of individual cases. Therefore, the power to give relief in particular instances is conferred on certain officers; and it is not to be presumed that they will exercise it wantonly, or for purposes of profit or oppression.” In Ex parte Christensen, 85 Cal. 208, this court upheld an ordinance prohibiting the business of a retail liquor dealer unless he procured the permission of a majority of the board of police commissioners, or, upon their refusal, the permission of twelve property owners in the block.

The foregoing authorities, in our opinion, clearly establish the validity of the ordinance here in question.

Counsel for petitioner rely on some cases, particularly State v. Dering, 84 Wis. 585, 36 Am. St. Rep. 948, and In re Frazee, 63 Mich. 396, 6 Am. St. Rep. 310, which, at first blush, seem to conflict with the general current of authorities as above presented. But upon closer examination they will be found to go upon a distinction or principle, whether sound or not, that is not applicable to the case at bar. They are based upon the theory that the lawful inherent rights of men cannot be entirely suppressed or destroyed by statute or ordinance, but can only be regulated, and that all regulations of such rights must be uniform, etc. The cases cited all deal with ordinances regulating the right of the people to have processions or parades in the streets; and it is this right that is discussed, although the accompaniment of music is mentioned in some of the ordinances. In State v. Dering, 84 Wis. 585, 36 Am. St. Rep. 948, the petitioner “ was convicted of parading the streets.” Row, the public have an undoubted right to travel on the street; that is what a street is for. And to march along a street in a procession is merely to exercise the right to travel on it. Therefore, if the cases under review be sound, this right can only be regulated, and cannot entirely be suppressed; and the regulation must be uniform, although it is difficult to understand how the crowded streets of a city could be practically regulated in this respect without vesting some discretion in the police authorities. At all events, the cases referred to deal with a right. But the proposition that a man has a natural, ingrained, inviolate, common law or constitutional right to beat a drum on the traveled streets of a city has no foundation in reason or authority. As, therefore, it is not a right that may not be entirely suppressed, it may be regulated as the law-making power may determine. In Ex parte Tuttle, 91 Cal. 589, it was held that, as betting on horseraces was demoralizing in its tendencies and an evil, it could be suppressed by ordinance; and that, as it could be suppressed, no one could be heard to complain of an ordinance regulating it because thereby special privileges accrued to particular persons. And in Ex parte Christensen, 85 Cal. 208, this court distinctly declared that such is the rule. The court said: “ The objection is that this makes the license depend upon the arbitrary will and pleasure of the board of fire commissioners.....But whatever force this objection might have in reference to licenses to carry on the ordinary vocations of life, which are not supposed to have any injurious tendencies, it has no force in the present case. It is well settled that the governing power may prohibit the manufacture and traffic in liquor altogether, provided only it does not interfere with interstate commerce. And, if the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases.....Even if it be conceded that the conditions were arbitrary, they were within the power of the board.”

In the ordinance involved in the case at bar there is no attempt to suppress processions or parades. It does not interfere with travel, but seeks to promote the comfort, convenience, and safety of travelers, by preventing that which .makes traveling uncomfortable and dangerous. Its provisions do not affect private premises, but refer solely to public traveled streets. It prohibits no business which every one has a right to pursue. As the wants and comfort and pleasure of the public require that the thing prohibited, although in the abstract injuriously annoying, should on special occasions be allowed, the ordinance provides for permitting the thing to be done on such occasions; and the granting of such privileges is not taking away the right to do the thing from others, because they have no such right. When the public welfare requires it a nuisance may, for special purposes, be permitted. (Pittsburgh etc. R. R. Co. v. Brown, 67 Ind. 45; 33 Am. Rep. 73; Sawyer v. Davis, 136 Mass. 239; 49 Am. Rep. 27.) As all such occasions cannot be foreseen and provided for by special enactment, some small discretion in the premises is granted to a certain officer; and that discretion to grant a permit is limited to instances where “the issuance of the same shall not conflict with the aforesaid purposes of this ordinance,” viz., “ to promote safety and security to public travel.” The validity of such an ordinance is clearly established by the current of authorities, some of which are hereinbefore cited. It is entirely within the reasoning of the supreme court of the United States in Crowley v. Christensen, 137 U. S. 86, which case also furnishes an answer to petitioner’s claim of support from Yick Wo v. Hopkins, 118 U. S. 373.

In our opinion the ordinance here involved is valid, and the petitioner should be remanded.

The writ is dismissed, and the petitioner remanded to the custody of the marshal.

Garoutte, J., Van Fleet, J., and Beatty, C. J., concurred.

Harrison J., dissenting.

The authority of the city to make police regulations is given by the constitution, and, although it is derived directly from the people, instead of mediately through the legislature by means of the municipal government act, yet it is a legislative power, and, like any other legislative power, is to be exercised by the body to which the power has been intrusted. The power to make laws is a sovereign power, and its exercise by the legislative body of a municipality, being a delegated power, cannot be delegated to any other body or individual. Mr. Dillon says (Dillon on Municipal Corporations, 96): “The principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.” Mr. Cooley says (Cooley’s Constitutional Limitations, 248): “So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates, or of any other authority.” This inhibition includes, not only the ordinance itself, which is to be adopted, but also the Individuals upon whom it is to operate, as well as the times and places in which it is to be in operation. The legislative body of the municipality cannot delegate to one of its members, or to any executive officer of the city, the power to determine whether an ordinance shall be operative upon certain individuals, or at certain times, any more than it can delegate to him the power to determine whether the ordinance shall be adopted, or shall have any operation; nor can it confer upon such officer the power to exempt any individual that he may choose from the operation of the ordinance. “No man’s rights can be submitted under a constitutional government to the discretion of anybody.” (Robison v. Miner, 68 Mich. 556.) Whenever the question has been presented for determination it has been uniformly held that an ordinance which confers upon an executive officer of the city the right to determine by his own will whether it shall be in operation or not in the particular cases to which it is directed is invalid. If the act covered by the ordinance is one which the individual has no inherent right to perform, or which the municipality may prohibit altogether, a privilege to perform the act may be made to depend upon a compliance with certain conditions, or the previous approval of another officer. If, however, the act is lawful or proper in itself, and improper only as it may affect the public, the power of the municipality is limited to a regulation of its exercise, and such regulation must be indicated by fixed and definite rules, and cannot be left to the arbitrament of any officer. This rule is not to be confounded with the execution of the ordinance by the officers intrusted therewith. The enforcement of the ordinance by the executive officer of the city is entirely distinct from determining whether the ordinance when adopted shall be in force. The policeman may have a discretion to determine whether an obstruction of the streets by an individual is such a violation of an ordinance forbidding the obstruction as will warrant his arrest, but neither he nor any other officer can have the power to determine whether the ordinance itself shall be suspended for the benefit of that individual, or whether he will give to such individual the right to disregard the ordinance. The right of the harbor master to station vessels at different points in the harbor, or of the policeman to prescribe the order of carriages at a theater, or of the superintendent of streets to designate a place for dumping garbage, is not the exercise of a legislative power, but rather the act of an executive officer to enforce the ordinance.

Accordingly, it has been held that an ordinance conferring upon the mayor the right to determine whether a stationary steam-engine should be removed was void, as conferring upon him a power which could only be exercised by the city council (Mayor of Baltimore v. Radecke, 49 Md. 217; 33 Am. Rep. 239); that an ordinance providing that no person should erect any building within the city limits without having obtained permission from the board of aldermen is void, since it does not prescribe a uniform rule of action for governing the exercise of their discretion (State v. Tenant, 110 N. C. 609; 28 Am. St. Rep. 715); that an ordinance forbidding the erection of livery stables in any block without the consent of the owners of land in the block is invalid (City of St. Louis v. Russell, 116 Mo. 248); that an ordinance making it unlawful for persons to parade a public street, singing or beating drums, or playing upon musical instruments, without having obtained the consent of the mayor, is void upon the ground that it does not fix the conditions uniformly and impartially, and is unreasonable (Anderson v. City of Wellington, 40 Kan. 173; 10 Am. St. Rep. 175; Matter of Frazee, 63 Mich. 396; 6 Am. St. Rep. 310; Rich v. City of Naperville, 42 Ill. App. 222; State v. Dering, 84 Wis. 585; 36 Am. St. Rep. 948); that an ordinance that no parades or processions shall be allowed upon the streets without a permit from the police department is invalid, because it leaves the power of restraining processions to an unregulated official discretion, when the whole matter, if regulated at all, must be by permanent legal provisions operating generally and impartially (City of Chicago v. Trotter, 136 Ill. 430).

There are many cases in which ordinances containing such a provision have been upheld, but in these cases the effect of such a provision upon the ordinance was not considered by the court, the only question presented to it for its consideration being the validity or invalidity of the ordinance upon other grounds. In these cases the act of the court in sustaining the ordinance cannot be regarded as an affirmance of the power to include this provision. Ordinances relating to health and security from fire, which prohibit certain acts without a permit from officers in charge of those departments, have been sustained upon the ground that the safety of the citizen from disease and fire were of a peculiar character, demanding the supervision of officers particularly skilled in reference thereto, and to whose judgment the matter could be more appropriately referred. The principles applicable to these ordinances, and under which they may be upheld, have, however, no application to the ordinance under discussion. There is another line of cases in which ordinances have been upheld which reserved to the city council, or to the legislative body itself, the power to exempt individuals from, their operation. This is, however, entirely consistent with the principle above laid down. It is not a delegation of legislative authority, but is an exercise of that authority by the legislative body itself. In the absence of any restrictions upon its exercise of the legislative power intrusted to it the city council has the same power to enact ordinances applicable only to special portions of the city, or to designated classes or individuals, as would the legislature of the state in the absence of constitutional restrictions; and it may equally enact an ordinance exempting individuals or classes from the operation of an ordinance, or suspending the operation of the ordinance entirely. This rule also includes another class of cases in which an exemption from the ordinance is made by some particular branch of the city government. The entire legislative power which is delegated to a municipality is not always conferred upon the city council. It may be portioned out to the different departments of the city, and authority conferred upon those departments to legislate upon the matter peculiarly intrusted to their ■care. The park commissioners may have exclusive authority to determine the manner and times in which the parks shall be used. The health department may have the authority to enact sanitary regulations for the entire city. Similar powers may be intrusted to the school department, the harbor commissioners, the police commissioners, for the enactment of ordinances relating to certain subjects.

The ordinance under consideration falls within the rule hereinbefore referred to, and should be declared invalid. It confers upon the president of the board of trustees the power to suspend its operation in favor of any individual, whenever he may elect, and to deny the same favor to another who may be equally entitled to its suspension. It, in fact, confers upon him the power to determine the extent to which the ordinance shall be operative, which is in reality the power to determine whether there shall be such an ordinance. The only limitation upon the exercise of this power is his own judgment that the permit will not conflict with the purposes of the ordinance. This is a pure and simple delegation to him of the legislative power which has been conferred upon the trustees themselves. It is not enough to say that it must be presumed that this officer will act properly. The question is not whether a power that has been conferred will be properly exercised, but whether there has been any authority given to confer the power. If there has not it is no answer to say that it will not be abused. In a country under the government of laws the conduct of its citizens cannot be subjected to the arbitrary will of any individual. The mildest despotism has no place in a constitutional government. Beating a drum is not a nuisance per se, or a violation of the rights of others, and it does not of necessity interfere with the usual and proper use of the public streets. The authority of the trustees of the city to regulate the use of the streets or the beating of drums thereon is not denied, but the “regulation” must be made by the city, and cannot be delegated by it to the president of the board of trustees.

In my opinion the ordinance is invalid, and the prisoner should be discharged.

De Haven, J., and Fitzgerald, J., concurred.  