Davis v. Massachusetts

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 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 by-laws 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 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. 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, 11 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, 39 N. E. 113. The superior court sentenced Davis to pay a fine and the costs of the prosecution, and the cause was brought here for review.

James F. Pickering, for plaintiff in error.

Hosea M. Knowlton, for defendant in error.

Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.