From the evidence it appears that upon the 28th day of September, 1901, the defendant was upon West Main- street, one of the public streets of the city of Amsterdam, speaking in the roadway of the street. He had drawn a crowd around him of about, as the evidence shows, from fifty to seventy people.. He was standing just north of the center of the street, and about twenty or thirty feet from the curb. The street was about sixty-five feet wide. The crowd was mostly collected upon the north side of the street so there was a passageway still left for a horse and. *127carriage upon the south side of the street. .The defendant was first asked by a police officer if he had a permit, to which he refused to respond. The officer then requested the defendant to stop speaking, which the defendant refused to do, whereupon he was arrested.
Upon this appeal it is contended by defendant’s counsel, first, that the city of Amsterdam had no authority to pass the ordinance in question; and, secondly, that the defendant was not guilty of a violation thereof. As to the authority of the city to pass the ordinance, there can be little doubt. The charter of the city (Laws of 1885, chap. 131, § 33, subd. 5) authorizes the common council, among other things, to pass ordinances “ to prohibit the gathering or assembling of persons upon the public streets of said city,” and to authorize the police to disperse such gatherings, and upon the refusal of persons so congregated to disperse, to make summary arrest and to prosecute them as disorderly persons, and all such persons are declared to be disorderly persons. This provision of the charter of the city of Amsterdam would seem to give to the common council of said city full authority to pass the ordinance in question. That the Legislature might give such authority to the common council would also seem to be undoubted. In Davis v. Massachusetts (167 U. S. 47), Justice White, in writing for the court, quoting the Supreme Judicial Court of Massachusetts, said: “ 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 less step of limiting the public use to certain purposes. * * * If the Legislature had power under the Constitution to pass a law in the form of the present ordinance, there is no doubt that it could authorize the city of Boston to pass the ordinance.”
The more difficult question arises under the second contention of defendant’s counsel, to wit, that he -has not been shown to have been guilty of any act which constitutes a violation of the ordinance. ' While the wording of the ordinance is not strictly correct, there can be no ambiguity as to its meaning. A person is forbidden to collect *128a crowd in the streets to the annoyance and disturbance of citizens, -or to the “hindrance of free and unmolested travel.” It cannot be necessary to show that some'travelers attempted to pass through the crowd and were actually hindered thereby. The}' might well have passed from the street before reaching the crowd that was before them in order to avoid collision with.the crowd. .Sixty or seventy people in a public highway sixty-five feet wide must constitute to an extent a hindrance to free and unmolested travel upon that highway. lío person could drive a horse through a street thus conditioned without greater care, even though a passage be left sufficiently wide for his horse to pass. The natural and necessary consequence of collecting a crowd in a highway is to limit the freedom of its use. But whether or not such a crowd, as a matter of-law, can be said to be a hindrance to free and unmolested travel upon that street, it is at least a question of fact which has been determined by a jury against the defendant, and upon, as I' think, abundant evidence. The apparent purpose of the ordinance was to prohibit just such public meetings in the street, and the act of the defendant in collecting this crowd Was, in my judgment, a clear violation of the prohibition of the ordinance which rendered him liable to the penalty which he • has been adjudged to pay. The judgment of conviction was, I think, clearly right, as was its affirmance by the County Court.
All concurred, except Parker, P. J., dissenting.