The authority of the city to make police regulations is given by the constitution, and, although it is derived directly from the people, instead of mediately through the legislature by means of the municipal government act, yet it is a legislative power, and, like any other legislative power, is to be exercised by the body to which the power has been intrusted. The power to make laws is a sovereign power, and its exercise by the legislative body of a municipality, *568being a delegated power, cannot be delegated to any other body or individual. Mr. Dillon says (Dillon on Municipal Corporations, 96): “The principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.” Mr. Cooley says (Cooley’s Constitutional Limitations, 248): “So far as its functions are legislative, they rest in the discretion and judgment of the municipal body intrusted with them, and that body cannot refer the exercise of the power to the discretion and judgment of its subordinates, or of any other authority.” This inhibition includes, not only the ordinance itself, which is to be adopted, but also the Individuals upon whom it is to operate, as well as the times and places in which it is to be in operation. The legislative body of the municipality cannot delegate to one of its members, or to any executive officer of the city, the power to determine whether an ordinance shall be operative upon certain individuals, or at certain times, any more than it can delegate to him the power to determine whether the ordinance shall be adopted, or shall have any operation; nor can it confer upon such officer the power to exempt any individual that he may choose from the operation of the ordinance. “No man’s rights can be submitted under a constitutional government to the discretion of anybody.” (Robison v. Miner, 68 Mich. 556.) Whenever the question has been presented for determination it has been uniformly held that an ordinance which confers upon an executive officer of the city the right to determine by his own will whether it shall be in operation or not in the particular cases to which it is directed is invalid. If the act covered by the ordinance is one which the individual has no inherent right to perform, or which the municipality may prohibit altogether, a privilege to perform the act may be made to depend upon a compliance with certain conditions, or the previous approval of another officer. If, however, the act *569is lawful or proper in itself, and improper only as it may affect the public, the power of the municipality is limited to a regulation of its exercise, and such regulation must be indicated by fixed and definite rules, and cannot be left to the arbitrament of any officer. This rule is not to be confounded with the execution of the ordinance by the officers intrusted therewith. The enforcement of the ordinance by the executive officer of the city is entirely distinct from determining whether the ordinance when adopted shall be in force. The policeman may have a discretion to determine whether an obstruction of the streets by an individual is such a violation of an ordinance forbidding the obstruction as will warrant his arrest, but neither he nor any other officer can have the power to determine whether the ordinance itself shall be suspended for the benefit of that individual, or whether he will give to such individual the right to disregard the ordinance. The right of the harbor master to station vessels at different points in the harbor, or of the policeman to prescribe the order of carriages at a theater, or of the superintendent of streets to designate a place for dumping garbage, is not the exercise of a legislative power, but rather the act of an executive officer to enforce the ordinance.
Accordingly, it has been held that an ordinance conferring upon the mayor the right to determine whether a stationary steam-engine should be removed was void, as conferring upon him a power which could only be exercised by the city council (Mayor of Baltimore v. Radecke, 49 Md. 217; 33 Am. Rep. 239); that an ordinance providing that no person should erect any building within the city limits without having obtained permission from the board of aldermen is void, since it does not prescribe a uniform rule of action for governing the exercise of their discretion (State v. Tenant, 110 N. C. 609; 28 Am. St. Rep. 715); that an ordinance forbidding the erection of livery stables in any block without the consent of the owners of land in the block is invalid (City of St. Louis v. Russell, 116 Mo. 248); *570that an ordinance making it unlawful for persons to parade a public street, singing or beating drums, or playing upon musical instruments, without having obtained the consent of the mayor, is void upon the ground that it does not fix the conditions uniformly and impartially, and is unreasonable (Anderson v. City of Wellington, 40 Kan. 173; 10 Am. St. Rep. 175; Matter of Frazee, 63 Mich. 396; 6 Am. St. Rep. 310; Rich v. City of Naperville, 42 Ill. App. 222; State v. Dering, 84 Wis. 585; 36 Am. St. Rep. 948); that an ordinance that no parades or processions shall be allowed upon the streets without a permit from the police department is invalid, because it leaves the power of restraining processions to an unregulated official discretion, when the whole matter, if regulated at all, must be by permanent legal provisions operating generally and impartially (City of Chicago v. Trotter, 136 Ill. 430).
There are many cases in which ordinances containing such a provision have been upheld, but in these cases the effect of such a provision upon the ordinance was not considered by the court, the only question presented to it for its consideration being the validity or invalidity of the ordinance upon other grounds. In these cases the act of the court in sustaining the ordinance cannot be regarded as an affirmance of the power to include this provision. Ordinances relating to health and security from fire, which prohibit certain acts without a permit from officers in charge of those departments, have been sustained upon the ground that the safety of the citizen from disease and fire were of a peculiar character, demanding the supervision of officers particularly skilled in reference thereto, and to whose judgment the matter could be more appropriately referred. The principles applicable to these ordinances, and under which they may be upheld, have, however, no application to the ordinance under discussion. There is another line of cases in which ordinances have been upheld which reserved to the city council, or to the legislative body itself, the power to ex*571empt individuals from, their operation. This is, however, entirely consistent with the principle above laid down. It is not a delegation of legislative authority, but is an exercise of that authority by the legislative body itself. In the absence of any restrictions upon its exercise of the legislative power intrusted to it the city council has the same power to enact ordinances applicable only to special portions of the city, or to designated classes or individuals, as would the legislature of the state in the absence of constitutional restrictions; and it may equally enact an ordinance exempting individuals or classes from the operation of an ordinance, or suspending the operation of the ordinance entirely. This rule also includes another class of cases in which an exemption from the ordinance is made by some particular branch of the city government. The entire legislative power which is delegated to a municipality is not always conferred upon the city council. It may be portioned out to the different departments of the city, and authority conferred upon those departments to legislate upon the matter peculiarly intrusted to their ■care. The park commissioners may have exclusive authority to determine the manner and times in which the parks shall be used. The health department may have the authority to enact sanitary regulations for the entire city. Similar powers may be intrusted to the school department, the harbor commissioners, the police commissioners, for the enactment of ordinances relating to certain subjects.
The ordinance under consideration falls within the rule hereinbefore referred to, and should be declared invalid. It confers upon the president of the board of trustees the power to suspend its operation in favor of any individual, whenever he may elect, and to deny the same favor to another who may be equally entitled to its suspension. It, in fact, confers upon him the power to determine the extent to which the ordinance shall be operative, which is in reality the power to determine whether there shall be such an ordinance. The only *572limitation upon the exercise of this power is his own judgment that the permit will not conflict with the purposes of the ordinance. This is a pure and simple delegation to him of the legislative power which has been conferred upon the trustees themselves. It is not enough to say that it must be presumed that this officer will act properly. The question is not whether a power that has been conferred will be properly exercised, but whether there has been any authority given to confer the power. If there has not it is no answer to say that it will not be abused. In a country under the government of laws the conduct of its citizens cannot be subjected to the arbitrary will of any individual. The mildest despotism has no place in a constitutional government. Beating a drum is not a nuisance per se, or a violation of the rights of others, and it does not of necessity interfere with the usual and proper use of the public streets. The authority of the trustees of the city to regulate the use of the streets or the beating of drums thereon is not denied, but the “regulation” must be made by the city, and cannot be delegated by it to the president of the board of trustees.
In my opinion the ordinance is invalid, and the prisoner should be discharged.
De Haven, J., and Fitzgerald, J., concurred.