The ordinance in question is not unconstitutional merely because it vests in the mayor the power to determine when he will grant or refuse a permit to speak in the public streets of Mt. Vernon. (Davis v. Mass., 167 U.S. 43.) An alleged discrimination against street preachers of the Gospel was, however, in the leading case, negatived by the state court. (Com. v. Davis, 162 Mass. 510, 512.)
The question is whether the constitutionality of an ordinance may be determined by the manner in which *Page 105 it is enforced. On this point some expressions of this court appear to be in conflict with decisions of the Supreme Court of the United States.
It was said in Yick Wo v. Hopkins (118 U.S. 356, 373), holding void in habeas corpus proceedings an ordinance to regulate the carrying on of public laundries in San Francisco on the ground that its administration was directed against the Chinese: "The cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."
The Yick Wo case was one of discrimination against the Chinese; the case before us is one of discrimination against the Socialists. The California ordinance may have been conceived in iniquity, while the Mt. Vernon ordinance was enacted before it became customary to adopt repressive measures against the Socialists, but if the unconstitutional purpose is the test no distinction is made between the enactment and the enforcement of an ordinance which wears the outward garb of constitutionality. It is in neither case the proper use of arbitrary *Page 106 power. Again, in People ex rel. Lieberman v. Vandecarr (199 U.S. 552, 563), another habeas corpus case, the United States Supreme Court said: "There is nothing in the record to show that the action against him (relator) was arbitrary or oppressive and without a fair and reasonable exercise of that discretion which the law reposed in the board of health. We have, then, an ordinance which, as construed in the highest court of the State, authorizes the exercise of a legal discretion in the granting or withholding of permits to transact a business, which, unless controlled, may be highly dangerous to the health of the community, and no affirmative showing that the power has been exerted in so arbitrary and oppressive a manner as to deprive the appellant of his property or liberty without due process of law. In such cases it is the settled doctrine of this court that no Federal right is invaded, and no authority exists for declaring a law unconstitutional, duly passed by the legislative authority and approved by the highest court of the state."
Here a class, milk dealers, was properly regulated. No discrimination against the relator, e.g., because he was a Democrat and the licensing authorities were Republicans, was indicated. The Yick Wo case was cited with approval as authority for the proposition: "There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorize the interference of a Federal court." (p. 562.)
But this court has casually said in People ex rel. Nechamcus v. Warden, etc. (144 N.Y. 529, 539): "Nor is the constitutionality of an act to be determined by the manner in which its provisions may be carried out by those upon whom devolves the duty of acting as examiners (of applicants for plumbers' licenses). If they act unfairly or oppressively, as alleged by the relator in his petition, *Page 107 that is conduct which may call for a remedy against the persons who compose the board; but it does not furnish ground for assailing the validity of the statute."
The right of free speech and right of assembly are not absolute and under the ordinance the mayor had the power, and it was his duty, to withhold permits for street meetings when he thought that such meetings would interfere with travel or create disorder. The ordinance properly construed did not authorize discrimination and was valid. But the people are not to be lawfully deprived of their free customs and privileges by the mere will of the magistrate. Street speaking is not forbidden to all, but only to those who have not received permission from the mayor. The presumption is that discretionary power will not be arbitrarily exercised but when it is so exercised the Supreme Court of the United States has not hesitated to hold that it will protect the individuals thus oppressed. (Yick Wo v. Hopkins,supra; People ex rel. Lieberman v. Vandecarr, supra.) "The Constitution is the supreme law; and statutes are written andenforced in obedience to its commands." (Municipal Gas Co. v.Public Service Comm., 225 N.Y. 89, 96.)
The mayor, when applied to by relators for a permit to hold a street meeting, as such meetings had previously been held in Mt. Vernon, announced that he would grant no further permits for Socialist meetings and would arrest any public speakers conducting such a meeting. The action was unauthorized, arbitrary and oppressive. The record does not suggest that the permit was refused for any other reason than that the political sentiments of relators were distasteful to the mayor.
I am strongly of the opinion that the doctrine of Yick Wo v.Hopkins and People ex rel. Lieberman v. Vandecarr controls and that the ordinance must be held to be unreasonable and void when it becomes an instrument of discrimination against relators to deprive them of their liberty without due process of law (U.S. Const. 14th Amend.; *Page 108 N Y Const. art. 1, § 6) and of their constitutional right of lawful assembly and freedom of speech. (N.Y. Const. art. 1, §§ 8, 9.) If such is the proper test, if the arrest was for a matter for which by law they were not punishable, habeas corpus was the relators' summary and effective remedy for arbitrary discrimination against them on account of their political principles and it was unnecessary for them to resort to mandamus or to other civil, criminal or political remedies in order to enforce their constitutional rights or to obtain redress. (Exparte Seibold, 100 U.S. 371, 376; People ex rel. Moskowitz v.Jenkins, 202 N.Y. 53.)
It seems almost needless to suggest that a permit would not have protected relators against the consequences of any disorderly or otherwise illegal conduct indulged in or instigated by them, and that they were at all times answerable to the law for the abuse of the rights of free speech and public assembly which they endeavored to assert.
The order of the Appellate Division should be reversed and that of the Special Term discharging relators from custody affirmed.
HISCOCK, Ch. J., HOGAN, CRANE and ANDREWS, JJ., concur with McLAUGHLIN, J.; CARDOZO, J., concurs in memorandum; POUND, J., reads dissenting opinion.
Order affirmed. *Page 109