The ordinance claimed to be violated was section 66 of the Revised Ordinances of the City of Boston (1893), and reads as follows:
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:
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:
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. [167 U.S. 43, 46] 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.
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:
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 [167 U.S. 43, 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:
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, 31 , 5 S. Sup. Ct. 357; Railway Co. v. Beckwith, 129 U.S. 26, 29 , 9 S. Sup. Ct. 207; Giozza v. Tiernan, 148 U.S. 657 , 13 Sup. Ct. 721; Jones v. Brim, 165 U.S. 182 , 17 Sup. Ct. 282), and does not have the effect of creating a particular and personal right in the [167 U.S. 43, 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, enrirely 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, 536 , 537 S., 17 Sup. Ct. 444. 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.