The ordinance under which the arrests were made and trial had was, by agreement, made part of the record, and the demurrer was sustained upon the ground that the ordinance was invalid. The ordinance in question, so far as it pertains to the question involved, is as follows:.
"First. That the collection or. congregation of persons upon the streets or sidewalks of the city, and the marching or movement of persons in crowds or processions thereon, at such times and places, and in such numbers and manner, as to obstruct or impede public travel thereon, or to injuriously affect or interfere with the business of any person or persons on such streets is *230hereby prohibited; and it is hereby made the duty of the mayor and city marshal to order all such congregations or processions of persons to quietly disperse; and the failure or refusal of any person or persons to promptly obey such order of the mayor or city marshal shall be deemed a misdemeanor, and, upon conviction thereof, such person or persons shall be fined in any sum of not less than one dollar and not more than fifty dollars, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecution are paid.
“Second. That the making of any noise upon the streets or sidewalks of the city, by means of musical instruments or otherwise, of such character and extent, and at such times and places as would likely cause horses and teams to become frightened and ungovernable, or of such character, extent and duration as to annoy and disturb others, is hereby prohibited; and it is hereby made the duty of the mayor and city marshal to order any person or persons making such noise to desist therefrom, and the failure or refusal of such person or persons to promptly obey such order of the mayor or city marshal is hereby declared to be a misdemeanor, and, upon conviction thereof, such person or persons shall be punished by a fine of not less than one dollar and not more than fifty dollars for each offense, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecution are paid.”
The grounds of demurrer are that this ordinance is unreasonable and unj ust, and prescribes a penalty, not for the violation of an ordinance, but for the refusal to obey an order of the mayor or city marshal. It is important to first determine whether the acts sought to be prohibited by the ordinance are such as .tbe city may punish by ordinance. We do not understand counsel to claim that collections and congregations of *231“persons upon the streets or sidewalks of a city, and the marching or movements of persons in crowds or processions thereon,” may not, under certain circumstances and conditions, be prohibited. It is not the orderly procession, with flags and banners, musical instruments, and all the accompaniments, so often seen upon the streets of our cities and towns, by our civic societies, by political parties, and not infrequently at funerals, which this ordinance prohibits. These processions are everywhere not only permitted, but encouraged. But suppose these processions should for an unreasonable time obstruct travel on the streets, or injuriously affect business, and be carried on to such an extent and for such time as to be an annoyance and a nuisance to the public, there can be no question that the city may by ordinance prohibit them, and punish the persons making such an unreasonable disturbance. If the ordinance involved in this controversy were a sweeping prohibition of all processions, parades, and all riding and driving upon the public streets of the city with bands of music, flags, torches, and other paraphernalia of the modern street parade, there can be no doubt that the ordinance would be unreasonable, unjust, and invalid. Within proper limits the city has the power “to prevent riots, noise, disturbance, or disorderly assemblages, •* * * and to preserve peace and order therein.” Code, sec. 456.
We do not understand counsel for the defendants to question these general propositions. The real objection which they urge to the ordinance is that the offense is made to depend upon the whim or caprice of the mayor or city marshal. It is true that, under the ordinance, when persons are arrested and brought for trial, it is incumbent on the prosecution to show by evidence that the order to desist from making the disturbance was given by the mayor or city marshal. But it is also incumbent on the prosecution to prove that the person *232or persons charged were guilty of doing the prohibited acts. This is the gravamen of the charge. Evidence that the order to desist was given, without more, would not authorize a conviction. We are aware of no case determined by a court of last resort which is exactly in point upon the question under consideration. In re Frazee, 63 Mich. 396, 30 N. W. Rep. 72, it was determined that an ordinance absolutely prohibiting street processions with musical instruments, banners, torches, etc., or while singing or shouting, without the consent of the mayor first obtained, was unreasonable and therefore invalid. In that case the offense consisted in failing to obtain the consent of the mayor before the procession or performance began. In the case at bar persons are not prohibited from putting a procession in motion. The prohibition extends to such a display as causes a public annoyance. So in the case of Mayor of Baltimore v. Radocke, 49 Md. 217, it was held that an ordinance which provided that permits for steam boilers and engines might be revoked and removed after six months’ notice from the mayor, and any one receiving such notice, who refused to comply therewith, should pay a fine, was held to be unreasonable. This was an unwarrantable and unreasonable interference with the prosecution of a legitimate business, and depended upon the mere caprice of the mayor. In the ease at bar, as we have said, the offense consists in doing acts which are everywhere regarded as subject to municipal control. Other cases are cited by counsel, but it appears to us that they are clearly distinguishable from the case at bar. On the other hand in the case of Commonwealth v. Davis, 140 Mass. 485, 4 N. E. Rep. 577, an ordinance providing that “no persons shall, except by the permission of the said committee, deliver a sermon, lecture; address, "or discourse on the common or public grounds,” it was held that the ordinance was not unreasonable and invalid. The committee *233referred to in the ordinance was the committee of the' city council-having charge of the public grounds. See, also, Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. Rep. 224.
In our opinion, the ordinance in question is not unreasonable. It is applicable to all persons who, by violating its provisions, subject themselves .to its penalties ; and the mere fact that no arrest can be made unless the mayor or marshal shall order the offender to cease from violating the ordinance, instead of being oppressive on the citizen, operates as a warning to him to desist from a violation of the ordinances. He should not be heard to complain of this feature of the ordinance.
The order of the district court sustaining the demurrer to the information is reversed.