About eight o'clock in the evening of November 2, 1920, the relators were arrested by the police of the city of Mount Vernon while addressing a meeting in the public streets of that city without a permit from the mayor, in violation of an ordinance enacted by the municipal authorities. After their arrest, they were taken before a magistrate, and pending trial each *Page 99 obtained a writ of habeas corpus. Upon the petitions and returns thereto, hearings were had, which resulted in one order sustaining the writs, discharging the relators and reciting that the ordinance under which the arrests were made was unconstitutional and void. An appeal was taken to the Appellate Division where the order was unanimously reversed and the writs dismissed. The relators appeal to this court.
The charter of the city of Mount Vernon (Laws of 1892, chap. 182, section 166, subd. 5, as amended by Laws of 1896, chap. 692) contains the following provision: "The Common Council * * * shall have full power * * * 5. To prohibit the gathering or assembling of persons upon the public streets of said city, or congregating upon the corners of the streets thereof * * *, and * * * 60. To make such general ordinances, by-laws and regulations not repugnant to the general laws of this state, as they shall deem expedient for the good government of the city."
In pursuance of the power thus given by the legislature to the common council of the city of Mount Vernon, the following ordinance was passed: "Section 21. The gathering or assembling of persons upon the public streets of the city, the holding of public meetings upon the public streets of the city, the congregating of persons in groups or crowds upon the public streets of the city, without special permit of the Mayor, to be granted in writing, under his hand and seal, is hereby prohibited. Any violation of the provisions of this section is declared to be a misdemeanor, punishable upon conviction by a fine of Twenty-five ($25) Dollars, or by imprisonment in the County Jail of Westchester County for twenty-five (25) days."
A violation of this ordinance by each of the relators is not denied. The sole question, therefore, to be determined upon this appeal is whether the ordinance be valid. The answer to the question turns upon whether *Page 100 the provision in the charter were a proper exercise of legislative power, and if so, whether the common council had the legal right, under the charter, to pass the ordinance.
The legislature had the constitutional right to confer upon the common council of the city of Mount Vernon the power to enact ordinances regulating the use of public streets and the gathering or assembling of persons thereon. This power was expressly given. The ordinance passed clearly came within the provisions of the charter and had the force and effect, within the corporate limits of the city, of a statute passed by the legislature itself. (Village of Carthage v. Frederick, 122 N.Y. 268; Matter ofStubbe v. Adamson, 220 N.Y. 459.) The ordinance passed in pursuance of the power thus conferred is valid, since it is a reasonable exercise of the police power over the public streets. It is not repugnant to the state or federal Constitution, since it does not abridge the right of free speech or assemblage. Public streets are primarily for public travel. They are dedicated to the public for that purpose. They are thoroughfares intended for the use of the public to enable persons to go from one place to another. All acts which tend to hinder public travel thereon may be forbidden and prohibited. Any obstruction on the streets, whether permanent or temporary, may be declared unlawful.
It is quite beside the question to assert that the acts forbidden may be lawful in themselves, and could not in a general way be prohibited. On the streets the exercise of such rights is subordinate to the public right of travel and may be regulated or prohibited. Public meetings and assemblages held on the streets tend to obstruct the streets and destroy in a measure the very purpose for which they have been dedicated. It is too well settled by judicial decisions in both the state and federal courts that a municipality may pass an ordinance making it unlawful to hold public meetings upon the *Page 101 public streets without a permit therefor to require discussion. The right to pass such ordinance is a valid exercise of legislative power, properly delegated to the municipal authorities. (Commonwealth v. Abraham, 156 Mass. 57;Commonwealth v. Davis, 162 Mass. 510; affd., 167 U.S. 43;Fitts v. City of Atlanta, 121 Ga. 567; Love v. Judge ofRecorder's Court, 128 Mich. 545; People v. Pierce, 85 App. Div. 125. )
The contention of the appellants that the ordinance prohibiting public speaking in the public streets abridges liberty of speech, and is, therefore, unconstitutional, is not sustained either by reason or authority. The answer to the contention is that the ordinance merely concerns the use of public streets and is not directed against or concerned with free speech generally. The people have many constitutional rights, the exercise of which on the public streets may be prohibited. While there is a constitutional right of free speech, there is no constitutional privilege to exercise this right on the public streets in the form of there holding a public meeting. The fallacy of the appellants' contention was pointed out by Mr. Justice HOLMES inCommonwealth v. Davis (supra). He said: "It assumes that the ordinance is directed against free speech generally, * * * whereas in fact it is directed toward the modes in which Boston Common may be used. * * * For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes."
The right to address a meeting upon the public streets of the city of Mount Vernon was prohibited by the *Page 102 ordinance unless a permit therefor were obtained from the mayor. Each of the relators was attempting to address such a meeting without a permit from the mayor and against his refusal to grant one. The right to grant or withhold a permit carried with it the exercise of discretion in the discharge of a public duty. The mayor, in passing upon an application, had to take into consideration the public safety as well as the public convenience. This involved, among other things, the place where the proposed meeting was to be held, the congestion in the street at that point, and the possible disturbance which the meeting might occasion. Obviously, the mayor had to exercise his discretion in a fair and impartial manner, with a view to the proper regulation of traffic and public necessities. If he did not exercise this discretion fairly, or if he acted arbitrarily or capriciously, then the relators might obtain relief by applying to the courts. (Matter of Ormsby v. Bell, 218 N.Y. 212;People ex rel. Nechamcus v. Warden; etc., 144 N.Y. 529;People ex rel. Empire City Trotting Club v. State RacingComm., 190 N.Y. 31.) They could not obtain such relief by taking the law into their own hands, defying the mayor and violating the ordinance. The statement of the mayor, in refusing to grant the permit to one of the relators, that he would grant no further permits for Socialists' meeting while mayor, is, under all the facts set forth in the petitions and returns thereto, quite immaterial to the determination of the question presented. There is nothing in the ordinance, either upon its face or so far as appears from a proper enforcement of it, that it was to apply to a particular party or particular class of persons; on the contrary, the object sought to be obtained necessarily applied to all persons alike.
A writ of habeas corpus cannot take the place or perform the functions of an appeal from a judgment of conviction. The court before which a person is brought under such writ simply inquires whether the court *Page 103 rendering the judgment had jurisdiction to do so. If that fact appears, and the mandate under which the defendant is held be regular upon its face, the writ must be dismissed. (People exrel. Hubert v. Kaiser, 206 N.Y. 46.) The magistrate before whom the relators were taken had jurisdiction to try them for a violation of the ordinance in question, and they are now legally in custody. The Appellate Division, therefore, properly held that the order of the Special Term was erroneous, reversed the same, dismissed the writs and remanded the relators.
In reaching this conclusion the authorities cited by the relators' counsel have not been overlooked. They are not in point, or are clearly distinguishable, with the exception ofState of Connecticut v. Coleman (113 Atl. Rep. 385). That authority sustains his contention, but is not sustained by, or in harmony with, the decisions of the courts of this and other states, or the Supreme Court of the United States. (See cases cited, also City of Brooklyn v. Breslin, 57 N.Y. 591; Peopleex rel. Larrabee v. Mulholland, 82 N.Y. 324; People ex rel.Schwab v. Grant, 126 N.Y. 473; People ex rel. Lieberman v.Vandecarr, 175 N.Y. 440; Stern v. Metropolitan Life Ins.Co., 169 App. Div. 217; affd., 217 N.Y. 626.)
The order of the Appellate Division should, therefore, be affirmed.