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inconsistent with our institutions. He says: "A man is responsible for the care, the health, the education and the happiness of his children. That responsibility does not cease when they attain majority. He should treat them with strict imparility For a mere whim he should not be peratted to favor one more than another. Owing to his good or bad management they are generally what he finds them to be. He has no right to bring them up in comfort and luxury, and then for some freak, to leave them nearly or quite penniless. Their errors as well as their virtues are frequently attributable entirely to their parents. The child against whom the parent feels most bitterness is often the very one who in intellect, temperament, habits and aspirations, most nearly resembles that parent himself." This is carrying the consequences of heredity too far. Worthy children are usually well treated by their parents. If they are needy the parents while living must take care of them. But Judge Thomas' theory would emasculate the race, . crush out of it all enterprise and ambition, convert the nation into a hive of drones. It would be well if every rich father could be compelled to furnish his sons a means of earning his own living, as a resource, but to give them to understand that they were to have the father's property at all hazards would not only encourage idleness but dissipation and vice. We hope the day will never come when we shall suffer any thing like the English rule of primogeniture and entail, under which almost twelve hundred noblemen own pretty much all the land worth owning. Our institutions need a free and untrammeled circulation of property. The fewer family properties like the Astors' and Vanderbilts', the better. After all, the system in this State is a good one. We leave nature to assert her preferences, except that we prohibit tying up estates for more than two lives in being, and where an estate exceeds $100,000 we deny the right to give more than half to charity, and that must be done more than two months before death.

"Law Made Easy, a Book for the People," is the title of a book by Lelia Josephine Robinson, the heroine of " Robinson's case," 131 Mass. 376, and the first admitted woman lawyer of Massachusetts. We have given it a cursory examination and are prepared to say that while we do not see that it fulfills its title, it is a most excellent statement of the law on the common leading topics; clear, accurate, simple; a good general view of the law for a beginning student. It consists in a statement of the common law and an appendix of abstracts of statutory provisions in all the States and territories. Miss Robinson proposes to keep up with the statutory changes in the future by issuing annual supplements. She will get out of breath. This is the weak point of the work. We do not believe that her book will enable people to dispense with lawyers. It will probably result like those little cases of medicines and directions with which a certain school of physicians furnish their

patients so that they can medicate themselves - the patients use the substitute and then consult the doctor to see if they have done right. Indeed, we should not wonder if the book got people into rather than out of law-through no fault of the author, but through the innate stupidity of the client class. Miss Robinson has made the best attempt at this impossibility that has ever been made. We notice very few errors, only one of importance, which is in the statement that a will must be executed in the presence of the witnesses together. We would recommend Miss Robinson to write a text-book on a single topic. She is fully capable of producing a good one, and is much too learned and bright to waste her time on this sort of thing.

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More than a passing notice is due to "A Treatise on the Limitations of the Police Power in the United States," by Christopher G. Tiedeman. The author states in the preface that "the principal object of the present work is to demonstrate that under the written constitutions, Federal and State, democratic absolutism is impossible in this country, as long as the popular reverence for the constitutions, in their restrictions upon governmental activity, is nourished and sustained by a prompt avoidance by the courts of any violations of their provisions, in word or spirit." The work is much more than a mere legal commentary; it is a statesmanlike treatise upon topics of the most vital importance. It has much comment upon theories that are now straining our institutions, such as landholding, boycotting, prohibition and regulation of intoxicating liquors, Sunday observance, and the like. On all these topics and throughout his work the author expresses himself in an original and independent strain, and with a candor and a moderation that are admirable. While we do not always agree with him, as for example in his dissent from the adjudication of the constitutionality of the New York civil damage act, in Bertholf v. O'Reilly, 74 N. Y. 509; S. C., 30 Am. Rep. 323, yet his argument is always ingenious and powerful. Mr. Tiedeman's style is excellent; his text is not a scissors' hotch-pot of all authors, but a distinctive and original vehicle of thought, which carries the reader easily along and makes it difficult to lay the book down. The only important omission which occurs to us is the matter of obscenity in art and literature, on which we have found no comment, and to which the index does not point us. Indeed, we must say that the index is not particularly good. We should also have liked to learn the author's views of the policy of the doctrine of scienter in cases of injury by animals, and of compelling a person to expose his person for the purpose of identification. To Mr. Tiedeman fairly belongs the credit of having produced the most interesting and one of the most important legal treatises of the last quarter of a century. The work is published in one volume, by the F. H. Thomas Law Book Co., St. Louis.

NOTES OF CASES.

N William Barr Dry Goods Company v. AtProbate Court of the city of St. Louis, the plaintiff sought to establish, as a demand against the estate of a decedent, a claim for the value of mourning apparel sold to the widow of the decedent to enable her to attend his funeral. The administrator insisted that the plaintiff's cause of action was against the widow only, and not against the estate; but Woerner, J., held otherwise, saying: "So far as the articles furnished are necessary to enable the widow to appear in decent costume at the obsequies to pay the last tribute demanded by the solemn occasion of putting to rest the remains of a departed husband, they seem clearly to constitute 'reasonable funeral expenses,' which the statute directs to be allowed against the estate, whether it be solvent or otherwise. In the case under consideration the evidence shows that the goods were reasonable and suitable to the occasion, and that the widow could not have appeared at the funeral without them, without disregarding public custom and offending public sentiment." This conclusion is supported by Allen v. Allen, 3 Dem. 524, and Wood's Estate, 1 Ash. 314. Flintham's Appeal, 11 S. & R. 16, and Succession of Halbert, 3 La. Ann. 436 are to the contrary.

In Renner v. Canfield, Supreme Court of Minnesota, Nov. 22, 1886, C., while on the highway in proximity to the residence of R., shot and killed the dog of S. The wife of R., who stood near by, and saw the shooting (C., however did not see her, and was not aware of her presence) was, owing to her previous delicate state of health, so startled and frightened by the occurrence as to cause serious sickness. Held, that even assuming the act to have been tort, the mere killing of the dog was not the approximate cause of the injury to the wife of R. | The court said: "Mrs. Renner being, owing to her pregnancy, in a delicate state of health, and her nerves very sensitive, was so startled and frightened as to seriously affect her health. Her fright seems to have been largely caused or at least greatly aggravated, by the mistaken impression that defendant aimed his gun toward her, when in fact it was aimed at right angles to the direction where she was standing. For the damages resulting from this injury to his wife's health plaintiff brings this action. It is very difficult to determine, either from the complaint or the evidence introduced, or from the court, the exact theory upon which this action was brought, tried or submitted to the jury, whether the gravamen of defendant's alleged tort was the killing of the dog, or negligence in firing off a gun in dangerous proximity to a human residence. The court did however expressly instruct the jury that the shooting of this dog by defendant was unlawful. He also instructed them that a person is liable for all the consequences which flow naturally and directly from his acts,' and then left

it to them to decide as a question of fact whether the injuries to plaintiff's wife were the natural result of defendant's acts.' From this the jury could and naturally would understand that defendant might be liable in this action from the mere fact that the killing of the dog was unlawful. We think a verdict for plaintiff could not be sustained on any such theory of the case. It is elementary that a man is liable only for the proximate or immediate and direct results of his acts. In strict logic it may be said that he who is the cause of loss should be responsible for all the losses, whether proximate or remote, which followed from his acts. But in the practical workings of society any such rule would be both impracticable and unjust, and therefore the law looks only to direct and proximate results, or as the rule is sometimes stated, 'whoever does a wrongful act is answerable for the consequences that may ensue in the ordinary and natural course of events.' There can be no fixed rule upon the subject that can be applied to all cases. Much must depend upon the circumstances of each particular case. But in this case it is very clear to us that the killing of this dog was in no sense the proximate cause of the injury to the plaintiff's wife. The act in itself was not a tort of any kind against plaintiff, as the dog was not his property. The injury to the woman would have been presumably the same whether the killing of the dog was lawful or unlawful, and whether the defendant had fired at the dog or at a bird in the air. If the acts of defendant amounted to any tort which, in any possible view of the case could be held to be the proximate cause of the injuries complained of, the gist of it must be negligence in shooting in such proximity to a human residence as might naturally and reasonably be anticipated to be liable to injure the inmates by fright or otherwise. We are by no means prepared to say that upon the evidence a verdict for plaintiff could be sustained even upon that ground." In Phillips v. Dickerson, 85 Ill. 11; S. C., 28 Am. Rep. 607, it was held that a married woman could not recover damages for a fright causing a miscarriage brought about by a quarrel between the plaintiff's husband and the defendant, within her hearing but out of their sight and without their knowledge of her vicinity. "It would be a very inconvenient rule if a man could not indulge in a quarrel with a married man without first making sure that his wife was not in hearing and not in a state of pregnancy."

In Spear v. Hiles, Supreme Court of Wisconsin, Nov. 23, 1886, it was held that " The deficiency in the nervous system of a child with which a woman who was wrongfully imprisoned was quick at the time she was arrested, is not a proper element of damages in an action by the woman for malicious prosecution, and testimony of a physician who attended the woman while in jail, and assisted at the delivery, but who had not seen the child for more than a year thereafter, is not competent to show that the neurasthenic condition of the child at that time was due to the nervous shock inflicted

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upon the mother by the arrest and imprisonment. At the time plaintiff was confined in prison she was with child, and was delivered thereof in the following December. Dr. Robinson attended her in prison, and officiated at the birth of her child. testified that he found her in prison suffering nervous prostration, followed by indigestion and debility; and the drift of his testimony is that in his opinion such condition was produced by the nervous shock caused by her arrest and incarceration, and still continues to some extent; and that while she may recover, he does not look for a speedy recovery. He also testified that a pregnant woman in that condition would be liable to give birth to a monstrosity or a deficiency; also that the plaintiff's child when born was perfect so far as he then knew, but that at the time of the trial, nearly two years later it was defective in the brain, spinal cord and nervous system. Dr. Robinson went to Europe in April, 1884,-about four months after the birth of the child, and did not return to Wisconsin until May, 1885. It does not appear that he knew or suspected the child was deficient until after his return. He was permitted to testify, against the objection of defendant, that in his opinion the cause of the deficiency in the child was the nervous, prostrate condition in which he found the plaintiff in July, 1883. Dr. Robinson was a competent witness to the condition of the plaintiff when he saw her in jail and afterward. He was competent also to give his opinion as an expert as to the nature and probable future effects of her condition upon herself, and perhaps upon her unborn child. in view of the facts that it is common knowledge that there are numerous causes for physical, mental or nervous deficiency in children; that healthy women do sometimes give birth to deficient children; that nervous or otherwise unhealthy women often bear healthy children; and that Dr. Robinson d tected no defect in the plaintiff's child until it was nearly a year and a half old, we think the authorized limits of expert testimony was greatly exceeded when he was allowed to give his opinion that the deficiency in the plaintiff's child was caused by the nervous prostration of the plaintiff during her pregnancy. The testimony should have been excluded. This testimony may have been, probably was, prejudicial to the defendant. The deficiency of the child is not a proper element of damages in this case; yet the very large sum at which the damages were assessed raises the apprehension - almost the presumption - that the damages were materially increased by reason of the admission of such improper testimony.

But

TELEPHONE COMPANY — DISCRIMINATION. SUPREME COURT OF PENNSYLVANIA, APRIL 19, 1886. BELL TELEPHONE CO. V. COM., EX REL. BALT. & OHIO TEL. Co.

A telephone company must upon an offer of compensation in the usual rates serve the public impartially and without discrimination.

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The relator and respondent are Pennsylvania corporations, organized under the Corporation Act of 1874. The relator operates lines of telegraph, the respondent operates lines for the transmission of human speech by means of the telephone. It is averred by the relator, and admitted by the respondent, that the use of the telephone is a public necessity, which no other human agency can supply. Consequently the telephone business is a public business. It is also averred that the respondent undertakes to serve the people of tion, at an annual rental which is uniform to all classes; that the relator, the Baltimore & Ohio Telegraph Company, has applied to the respondent for a telephone instrument and necessary connecting wires, has offered to pay the usual rental therefor, and to comply with all the reasonable rules and regulations of the respondent; but that the respondent refuses to furnish to the relator a telephone for the purpose of receiving or delivering telegraph messages, although such service is simply in the ordinary line of the relator's business. To show that this refusal is an unjust and unreasonable discrimination against the Baltimore & Ohio Telegraph Company, it is averred that the respondent has placed an instrument in the

Philadelphia, without distinction of class or occupa

office of the Western Union Telegraph Company, in the city of Philadelphia, and permits that company and its customers to use the telephone for the purpose of sending telegrams; and it is alleged that the permission thus enjoyed by the Western Union Telegraph Company and the refusal to permit the Baltimore & Ohio Telegraph Company and its customers to enjoy the same privileges is an unjust discrimination against them, and a violation of the duty of the respondent to serve the public indiscriminately.

"The respondent, the Bell Telephone Company of Philadelphia, alleges that it is the licensee of the National Bell Telephone Company, to whose rights the American Bell Telephone Company has succeeded, and that the respondent is subject in its dealings with the people of Philadelphia to the terms of the contract under which said license was given; that the American Bell Telephone Company is now the owner of all the patents for the transmission of articulate speech by means of electricity; that there were at one time numerous suits pending between the National Bell Telephone Company and other parties in its interest, and the Western Union Telegraph Company and parties in its interest, involving conflicting claims to priority of invention and alleged infringement, and that in the year 1879 it was agreed in settlement of the litigation that the National Bell Telephone Company should acquire all the patents relating to telephones, but that the telephones, in the words of the agreement, are not to be used for the transmission of general business messages, market quotations of news for sale or publication in competition with the Western Union Telegraph Company or with that of the Gold and Stock Telegraph Company; and the party of the second part, the National Bell Telephone Company, so far as it lawfully and properly can prevent it, will not permit the transmission of such general business messages, market quotations or news for sale or publication over lines owned by it or by corporations in which it owns a controlling interest, nor license the use of its telephones or patents for the transmission of such general business messages, market quotations, or news for sale or publication in competition with

such telegraph business of the Western Union Telegraph Company or that of the Gold and Stock Telegraph Company.'

"The party of the second part will fully license the party of the first part, the Western Union Telegraph Company, to use telephones procured from it for transmitting telegraph messages,' etc.

"For the purposes and uses aforesaid the party of the first part shall be furnished with telephones, with licenses from the party of the second part to use such telephones and other inventions owned or controlled by it, for use in connection with telephone lines on terms which may be established from time to time, and which shall be as favorable as those on which they are furnished to any other parties for like uses, and shall be allowed a discount, as provided in articie 2.'

"I have quoted literally from the agreement of 1879 for the purpose of showing that the Western Union Telegraph Company is not a patentee which has granted a license for a restricted use of its patents to the telephone company, reserving thereout a certain exclusive use to itself, as was contended on its behalf by the learned and able counsel of the respondent, but that it is a licensee, paying to its licensor, as averred in the return, an additional compensation or royalty upon every message received or delivered by it, of which compensation or royalty only a small percentage is paid to the respondent, according to its averment.

"The agreement, it will be seen, provides for licenses from the telephone company to the Western Union Telegraph Company, on terms to be established from time to time, which shall be as favorable to that telegraph company as to any other parties for like uses, thereby recognizing the duty of the respondent and its licensor to deal equally with all, and binding it to that duty by express contract. All the telephone patents, it is claimed by the respondent, are now owned by the American Bell Telephone Company, and no person can use them except under contracts or licenses from that company. The Western Union Telegraph Company has given up its claim to all such patents, and the American Bell Telephone Company has put them into public use, and thereby subjected them to the rule that when the use of a patented device is thrown open to the public, or to classes of the public, all are entitled to use it on the same terms as other persons in the same class. The rules which govern common carriers apply to it, and those rules prohibit any discrimination to be made. This is the rule of the common law as enforced in many adjudged cases, of which Sanford v. Railroad Co., 24 Penn. St. 378, may be referred to as a conspicuous and pertinent example. In that case it was decided that a contract giving to one express company an exclusive right of transportation in the passenger trains of the railroad company is illegal and void. The law on this subject is placed beyond successful dispute by the third clause of section 33 of the Corporation Act of 1874, which enacts that the said telegraphic corporations shall * * receive dispatches from and for other telegraph lines and corporations, and from and for any individual; and on payment of their usual charges to individuals for transmitting despatches, as established by the rates and regulations of such telegraph line, transmit the same with impartiality and good faith, under penalty of $100 for every neglect or refusal so to do," etc. And that telephone companies are included within this clause is shown by the case of Attorney-General v. Edison Telephone Co. of London, reported in 6 Q. B. Div. 244; S. C., 29 Eng. Rep. 602 (A. D. 1880), in which English statutes relating to telegraph companies en

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acted in the years 1863 and 1869, before the telephone was patented or perhaps invented, were held to apply to telephone companies. Besides the respondent was chartered under the act of 1874, which gave it a legal existence and prescribed its duty at the same time. It cannot transact business in this State but for that act, and operating under that act, it must deal equally with all, with impartiality and good faith, and without discrimination in favor or against any one.

"The conclusion to which we have come by the foregoing reasoning is supported by the authority of several adjudged cases.

"In the case of the State of Ohio, on the relation of the American Union Telegraph Co., and the Baltimore & Ohio Railroad Co. v. Bell Telephone Co., the Columbus Telephone Co. and the Western Union Telegraph Co., reported in 36 Ohio St. 296; S. C., 38 Am. Rep. 583 (A. D. 1880), an application was made to the Supreme Court of Ohio for a mandamus to compel the Columbus Telephone Company to place a telephone in the office of the relators for the use of their telegraphic department. The (American) Bell Telephone Company, although a party, does not appear to have been served, nor did it join in the answer filed. The defense was that the license by the American to the Columbus Telephone Company contained the same restriction which is in controversy in this suit, that the Columbus Telephone Company would not permit the transmission of general business messages, market quotations or news for sale or publication, and that it would turn over all such messages to the licensor, the American Bell Telephone Company, unless otherwise directed by its customers, but that it would not solicit such directions, nor receive pay for transmission over other lines, unless compelled by law to do so, thereby showing the doubt of the parties to the contract as to its validity. There is in Ohio a statute similar to our Pennsylvania statute, requiring telegraph companies to receive dispatches from and for other companies and individuals, and to transmit the same with impartiality on payment of the usual charges. The court held that the contract to the effect that discriminations should be made between telegraph companies is void as against public policy as declared by the statute, and awarded the mandamus.

"The case of the State of Missouri, ex rel. American Union Telegraph Co., v. Bell Telephone Co. of Missouri, in the Circuit Court of St. Louis, reported in 10 Cent. L. J. 438, and 11 id. 357; also in 22 Alb. L. J. 363 (A. D. 1880). In that case there were clauses in the license of the respondent which provided that its patrons should not use the telephone for transmitting messages for which toll is paid to any one but the respondent, nor for transmitting market quotations or news for sale or publication; that it should not connect any of its officers with any telegraph office or line, and that no telegraph company should be allowed to become a subscriber. Judge Thayer held that this second clause would compel the respondent to discriminate against a class of individuals or corporations, which is contrary to law and to public policy. A public servant cannot avoid the performance of any part of the duty it owes to the entire public, by a contract even with the patentee of an invention. Doubtless a condition limiting the use which should be made of the telephone affecting all classes of citizens, and discriminating between none, might be valid; but having the right to use the telephone, the relator might use it for the same purposes that other subscribers use it.

"The principle was also enforced in the case of the Louisville Transfer Co. v. American District Telephone Co., in the Louisville Chancery Court, reported in 14 Chicago Legal News, 15, and also in 24 Alb. L. J. 283

(A. D. 1881). In that case the plaintiff carried on a passenger transfer business in public omnibuses and carriages, and the defendant operated a telephone exchange, and organized as part of his business a system of public transfers by carriages and coupes. The defendant had placed a telephone in the plaintiff's office, and threatened to remove it, whereupon the plaintiff applied for an injunction. Chancellor Edwards held that the defendant, being engaged in two distinct employments, one, the operating of a telephone exchange and the other a carriage service, there was no rivalry between the plaintiff and the defendant in the tele. phone business, as to which the defendant occupied the same position toward the plaintiff as toward the rest of the public, and the defendant being a quasi public servant, is bound to serve all alike and impartially on the principles of the law of common carriers.

case now

"The last reported case in which the same conclusion was reached is that of the State of Missouri, ex rel. Baltimore & Ohio Telegraph Co., v. Bell Telephone Co. of Missouri, in the Circuit Court of the United States for the Eastern District of Missouri, reported in 24 Am. Law Reg. 573, and 8 Am. & Eng. Corp. Cases, 7 (A. D. 1885). It will be noticed that the plaintiff in that case is the plaintiff in the before us, and the defendant was in the same position as the defendant in this case, and it rested its defense on the same ground-a contract with the American Bell Telephone Company that it would not establish telephonic connection with any telegraph company, unless permitted by the American Bell Telephone Company. It also appeared that telephonic communication had been permitted to the Western Union Telegraph Company. Judge Brewer held that the telephone company, having put its patents into public use, or the channels of commerce, as he expresses it, the property is put within the power of the court for enforcing the obligations of a common carrier. It is true the judgment was given by a divided court, but Judge Treat placed his dissent on the ground that the American Bell Telephone Company, not being a party, in his opinion a valid judgment could not be given.

"The Supreme Court of Connecticut has decided the question the other way, notwithstanding there is a statute in that State and also in Massachusetts similar to those of Ohio and Pennsylvania. American Rapid Telegraph Co. v. Connecticut Telephone Co., 49 Conn. 352 (A. D. 1881).

"In the case before us the American Bell Telephone Company is not a party, and we do not think it indispensable that it should be. We are not called upon to expound or enforce the contract between that company and the Philadelphia company. What we are called upon to do is to declare that the illegal portious of their contract cannot be enforced in this State; that those portions are void and against public policy as declared both by the common law and by statute; and that the respondent cannot shield itself from the performance of its duty to serve the public impartially and without discrimination by a contract with a party not within the State. We deal with parties carrying on a public business within our borders under the protection of our laws, to compel them to comply with our laws. They cannot obtain immunity from their obligation to treat all alike by pleading a license from parties beyond our grasp. The owner of a patent may put it in public use or withhold it, as he chooses; but if he does put it in public use, then, as was well said by Chief Justice McIlvaine, of Ohio, the manner of its use may be controlled and regulated by State laws when the public welfare requires it.' The patent gives him a monopoly by protecting him from the competition of other persons in the busi.

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ness secured by the patent, but it does not permit him to make discriminations against persons who are willing to pay the same rates which other persons are charged for the use of it.

"We say nothing now on the subject of charges by the respondent for the use of she telephone, except this: Whether it be by an annual rental or a tariff of charges upon messages, it must be the same for all. The demurrer is sustained and a writ of peremptory mandamus awarded.

Silas W. Pettit, John R. Read, Samuel B. Huey and Wager Swayne, for plaintiff in error.

N. Dubois Miller, for defendant in error.

PER CURIAM. We have carefully examined the record in this case, and have given due consideration to the able argument of the counsel for the plaintiff in error, yet we are not able to discover any error in the conclusion at which the learned judge arrived. His opinion contains a correct statement of the law, and vindicates the judgment. Judgment affirmed.

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A city ordinance providing that "no person or persons, associations or organizations, shall march, parade, ride, or drive in or upon or through the public streets of the city of Grand Rapids, with musical instruments, banners, flags, torches, flambeaux, or while singing or shouting, without having first obtained the cousent of the mayor or common council of said city," is unreasonable and invalid.

CAMPBELL, C. J. Petitioner, was brought up on habeas corpus to determine on the legality of his 'detention under a complaint and warrant in a proceeding before the Police Court of Grand Rapids. No point is raised concerning the formality or jurisdiction of the court, if the by-law is valid under which the complaint was made. We shall therefore not pass upon the form of the remedy, as no argument was made except on the by-law.

The complaint was made under a by-law of the city of Grand Rapids, passed on the 13th of September, 1886, and which, from the petition, appears to have been published on the 24th of the same month. The violation of it is alleged to have occurred on the 28th of September, which seems to have been as soon as it became operative. The by-law in question is entitled "An ordinance to regulate the use of the public streets in the city of Grand Rapids, and to prohibit certain doings therein." This ordinance consists of five sections, of which the first and fifth are chiefly material in this inquiry.

The first section is as follows: "No person or persons, association or organizations, shall march, parade, ride, or drive, in or upon or through the public streets of the city of Grand Rapids, with musical instruments, banners, flags, torches, flambeaux or while singing or shouting, without having first obtained the consent of the mayor or common council of said city; funeral and military processions however shall not be subject to the foregoing provisions of this section, but such processions, as well as those having the permit or consent of the mayor or common council, when using the public streets of said city, shall conform to such directions as the mayor or chief of police may give in relation to the streets to be used, and the portion

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