Wilson v. Eureka City

Decision Date20 February 1899
Docket NumberNo. 142,142
Citation173 U.S. 32,43 L.Ed. 603,19 S.Ct. 317
CourtU.S. Supreme Court

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 sentenced to pay a fine of $25. 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 14 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.1

The evidence showed that the plaintiff in error was the owner of a wooden building of the dimensions of 20 by 16 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 50 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 206 feet along and across Main street. Eureka City was and is a mining town, and had and has a population of about 2,000. It was admitted that the building was moved with reasonable diligence.

The plaintiff in error was again convicted. From the judg- ment of conviction he appealed to the supreme court of the state, which court affirmed the judgment (48 Pac. 41, 150), 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.'

J. W. N. Whitecotton, for plaintiff in error.

P. L. Williams, for defendant in error.Mr. Justice McKENNA, after stating the facts in the foregoing language, 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: In re Frazee, 63 Mich, 396, 30 N. W. 72; State v. Dering, 84 Wis. 585, 54 N. W. 1104; Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719; Mayor, etc., v. Radecke, 49 Md. 217; City of Chicago v. Trotter, 136 Ill. 430, 26 N. E. 359.

With the exception of Mayor, etc., 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 Re Flaherty, 105 Cal. 558, 38 Pac. 981, 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:


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