¶1ERROR TO THE SUPREME COURT OF THE STATE OF UTAH.
¶2Section 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.
¶3Section 12 of ordinance number 10 of Eureka City, Utah, provided as follows:
¶4“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.”
¶5The plaintiff in error was tried for a violation of the ordinance in the justice’s court of the city. He was convicted and *33sentenced to pay a fine of twenty-five dollars. He appealed to the district court of the first judicial district of the Territory of Utah.
¶6On 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.
¶7Section 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 councillor.
¶8There 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
¶9*34The 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 eleven a.m. and three 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 travelled highway. The distance of removal was turn hundred and six -feet long and across Main street. Eureka City was and is a mining town, and had and has a population of about turn thousand. It was admitted that the building was moved with reasonable diligence.
¶10The plaintiff in error was again convicted. From the judg-*35raent 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.
¶11Eureka 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:
¶12“ 10. To regulate the use of streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds.
¶13“ 11. To prevent and remove obstructions and encroachments upon the same.”
¶14The 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 · Case Law">due process of law,” and “the citizen is thereby denied the equal protection of the law.”
¶15Mr. J. W. N. Whitecotton for plaintiff in error.
¶16Mr. P. L. Williams for defendant in error.
¶25after stating the case, delivered the . opinion of the court.
¶26Whether 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.
¶27It is contended that it does, because the ordinance commits the rights of the 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 Michigan, 396; State ex rel. Garrabad v. Dering, 84 Wisconsin, 585; Anderson v. Wellington, 40 Kansas, 173; Baltimore v. Radecke, 49 Maryland, 217; Chicago v. Trotter, 136 Illinois, 430.
¶28*36With 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 ex rel. Garrabad 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.
¶29This 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 California, 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. *37239; 49 Amer. Rep. 27); 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 (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 &c. 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).”
¶30In 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 aider-men 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.
¶31Davis 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.
¶32. The ordinance was objected to, as that in the case at bar is objeeted 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.
¶33It follows from these views that the judgment of the Supreme Court of Utah should be and it is
¶34Affirmed.