It will be observed that the deed to Horton A deed may be void by reason of the inof August 3, 1858, antedated the deed to Mc- fancy or coverture of the grantors, and yet Clure of February 22, 1870, by more than may be, under the laws of the state, entitled twelve years, and was recorded July 16, 1861, to record and notice to subsequent purchaswhile the deed to McClure was recorded ers. While the record of a void deed is of March 11, 1871, nearly ten years thereafter. no greater effect than the deed itself, and is The deed to Horton also antedated the deed not such notice as will give protection to a

bona fide purchaser, yet it may, under cer- |corder's office in Cook county, and when Motain circumstances, be a notice to intending Clure took his deed of November 22, 1870, purchasers, or third persons, that the grant- and obtained the approval of the President or has intended and undertaken to convey of February 24, 1871, he took it with the his title. Thus, in Morrison v. Brown, 83 chance that the Horton deed had already Ill. 562, a deed of trust executed by a mar- been approved and that the power of the ried woman, her husband not uniting there- President had been exhausted. The approval 30] in, to secure the purchase money of the prop by the President of his deed was doubtless an erty, though void as a conveyance, was never-inadvertence, and, in view of the fact that he theless held to be an instrument in writing had already approved the Horton deed, a relating to real estate within the statute of nullity. By his approval of the first deed Illinois, and, when recorded, constructive no- the title of Robinson was wholly devested, tice to all subsequent purchasers of the lien and there was nothing left upon which a of the original vendor upon the same for the subsequent approval could operate, unless unpaid price. The court took the ground we are to assume that such subsequent apthat while married women had no force or proval in some way revested the title in Robpower to create a lien, subsequent purchas-inson and passed it to McClure. No new deers occupied the same position as they would livery was necessary to pass the title to Horhave done had the instrument been read to ton. United States v. Schurtz, 102 U. S. them before they became interested in the 378 [26: 107]; Bicknell v. Comstock, 113 U. question. S. 149 [28: 962]; Gilmore v. Sapp, 100 Ill. So, in Tefft v. Munson, 57 N. Y. 97, the 297; Gallipot, Bruner, v. Manlove, 2 Ill. 156. record of a mortgage prior to the acquisition No injustice was done to McClure, since he of title by the grantor was held to be con- already had notice, both by the record and structive notice to a subsequent purchaser in by Robinson's statement, that he had congood faith, and, under the recording act, giv-veyed the land, and an examination of the ing it priority to the title. See also United record in Washington would doubtless have States Ins. Co. v. Shriver, 3 Md. Ch. 381; shown that the prior deed had received the Alderson v. Ames, 6 Md. 52; Stevens v. approval of the President. The two deeds Hampton, 46 Mo. 404. stand in the relation of two patents for the same land, the second of which is uniformly held to be void.

In this case, however, it appears from McClure's own statement that when Robinson came to him in 1870 to sell him his right to the land, he told him that he had already sold the premises, but without the approval of the President, and that McClure sent his own attorneys to examine the record. He thus had not only constructive, but actual, notice of the Horton deed.

The approval of the President was no proper part of the deed. The language of the restriction in the original patent was "but never to be leased or conveyed by him [the grantee], them, his or their heirs, to any person whatever, without the permission of the President of the United States." How that permission should be obtained or expressed is left undetermined by the proviso. We see no reason why it might not have been by a memorandum at the foot of the petition for approval, or even by a letter to that effect. The essential fact was that permission should be obtained and expressed in some form, of which, in all probability, a record was kept in the Department.

There is nothing in the fact that the par
tition proceedings, under which Robinson ob-
tained title to the land in dispute, were not
approved by the President. Not only were
these partition proceedings set forth as a
part of the record of the case at the time he
approved the Horton deed, but as already
held in the prior case (p. 316 [36: 719]), [32]
such approval was retroactive, and operated
as if it had been indorsed upon the deed when
originally given, and inured to the benefit of
Horton and his grantee, "not as a new title
acquired by a warrantor subsequent to his
deed inures to the benefit of the grantee, but
as a deed, imperfect when executed, may be
made perfect as of the date when it was de-
livered."

The judgment of the Supreme Court of
Illinois is therefore affirmed.

ROBERT G. WILSON, Piff. in Err.,

v.

EUREKA CITY.

(See 8. C. Reporter's ed. 32-37.)

Indeed, we think it sufficiently appears that at the time the deed to McClure was approved by the President, February 24, 1871, *there was on file in Washington the approval of the President of the prior deed to Horton. There was put in evidence a certificate of the Commissioner of Indian Affairs, signed March 7, 1896, to a certified copy of the Horton deed, with an affidavit as to the loss of the original, a further affidavit that the sale was an advantageous one for Robinson, and the approval of the President, dated January 21, 1871. It does not directly appear when the approval of the President was put on file in the office of the Commissioner, but we think the presumption is that it was filed as of its date. There was nothing requiring | Submitted January 17, 1899. Decided Feb

that this approval should be filed in the re

City ordinance, when not unconstitutional.
An ordinance requiring the written permission
of the mayor or president of the city council,
or, in his absence, of a councilor, before any
person shall move a building on the streets,
is not unconstitutional as a denial of the
equal protection of the laws or of due process
of law.
[No. 142.]

ruary 20, 1899.

603

174

N ERROR to the Supreme Court of the | further showed that plaintiff in error applied

that court affirming a judgment of the Fifth Judicial District Court of the State of Utah, County of Juab, which affirmed the judgment of a Justice's Court of Eureka City, Utah, convicting plaintiff in error, Robert G. Wilson, of a violation of an ordinance of that city upon which he was sentenced to pay a fine. Affirmed.

See same case below, 15 Utah, 53.

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 otherpart of the space being occupied by sidewalks, and the balance by the traveled highway. The distance of removal was two hundred and six feet along and across Main street. Eureka City was and is a mining town, and had and has a population of about two thousand. It was admitted that the building was moved with reasonable diligence.

[34]

Statement by Mr. Justice McKenna: Section 12 of ordinance number 10 of Eureka City, Utah, provided as follows:

"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 councilor. A violation of this section shall, on conviction, subject the offender to a fine of not to exceed twenty-five dollars."

The plaintiff in error was tried for a vio lation of the ordinance in the justice's court [33] of the city. He was convicted and *sentenced to pay a fine of twenty-five dollars. He appealed to the district court of the first judicial district of the territory of Utah.

On 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.

Section 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 councilor.

There 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.t

*The 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

† Section 1. That the following boundaries | are hereby established as the fire limits of Eureka City, to wit: Commencing at a point on Main street of sald city, where said street crosses the Union Pacific Railway track, and opposite or nearly opposite the Keystone hoisting works, thence running in an easterly direction along said Main street to a point where said street intersects the road or street easterly of the site now occupied by the M. E. Church building the northerly and southerly boundaries of said fire limits to be two hundred feet on each side of said Main street for said distance.

Sec. 2. Every building hereafter within the fire limits of said city shall be of brick, stone, iron, or other substantial and incombustible

*Mr. Justice McKenna delivered the [35] opinion of the court:

Whether 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, material, and only the following wooden buildings shall be allowed to be erected, except as hereinafter provided, viz.: Sheds to facilitate the erection of authorized buildings, coal sheds not exceeding ten feet in height, and not to exceed one hundred feet in area, and privies not to exceed thirty feet in area and ten feet in height, and all such sheds and privies shall be separate structures: Provided, That any person desiring to erect a building of other material than those above specified within said fire limits, shall first apply to the committee on building within said fire limits of the city for permission so to do, and if the consent of the committee on building within said fire limits shall be given, they shall issue a permit, and it

and we are confined to the consideration of whether the power conferred does or does not violate the Constitution of the United States.

It is contended that it does, because the ordinance commits the rights of 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 Mich. 396; State, ex rel. Garrabad, v. Dering, 84 Wis. 585 [19 L. R. A. 858]; Anderson v. City of Wellington, 40 Kan. 173 [2 L. R. A. 110]; Mayor of Baltimore v. Radecke, 49 Md. 217 [33 Am. Rep. 239]; City of Chicago v. Trotter, 136 Ill. 430.

mittee (Commonwealth v. Davis, 140 Mass. 485); 'beating any drum or tambourine, or making any noise with any instrument for any purpose whatever, without written per. mission of the president of the village," on any street or sidewalk (Vance v. Hadfield, [51 Hun, 620], 22 N. Y. S. R. 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. 239, 49 Am. Rep. 27); prohibiting the erecting or repairing of a wooden building [37] without the permission of the board of aldermen (Hine v. The City of New Haven, 40 Conn. 478); authorizing harbor masters to [86] *With the exception of Baltimore v. Rad- station vessels and to assign to each its ecke, these cases passed on the validity of place (Vanderbilt v. Adams, 7 Cow. 349); city ordinances prohibiting persons parading forbidding the occupancy of a place on the streets with banners, musical instruments, street for a stand without the permission of etc., without first obtaining permission of the the clerk of Faneuil Hall Market (Nightinmayor or common council or police depart-gale, Petitioner, 11 Pick.168); forbidding the ment. Funeral and military processions keeping of swine without a permit in writwere excepted, although in some respects ing from the board of health (Quincy v. Kenthey were subjected to regulation. This dis- nard, 151 Mass. 563); forbidding the ereccrimination was made the basis of the deci- tion of any kind of a building without a persion in State, ex rel. Garrabad, v. Dering, mit from the commissioners of the town but the other cases seem to have proceeded through their clerk (Easton Commissioners upon the principle that the right of persons v. Covey, 74 Md. 262); forbidding any perto assemble and parade was a well-estab- son from remaining within the limits of the lished and inherent right, which could be market more than twenty minutes unless regulated but not prohibited or made de- permitted so to do by the superintendent or pendent upon any officer or officers, and that his deputy (Commonwealth v. Brooks, 109 its regulation must be by well-defined con- Mass. 355)." ditions.

In 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 dis cretion in a board of aldermen 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 [42: 71].

This 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 Re Flaherty, 105 Cal. 558 [27 L. R. A. 529], 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 com

|

Davis was convicted of violating an ordinance of the city of Boston by making a public address on the "Common," without ob taining a permit from the mayor. The conviction was sustained by the supreme judicial court of the commonwealth (162 Mass. 510 [26 L. R. A. 712]), and then brought here for review.

The ordinance was objected to, as that in ployed, who shall assist in violation or noncompliance with the provisions of this ordinance, shall be subject to a fine for every such violation or noncompliance, of not less than ten nor more than one hundred dollars.