In McGovern v. City of New York (1912), the U.S. Supreme Court ruled in favor of the city, upholding its right to regulate and control street excavations for utility purposes. The case was brought by a private citizen, John J. McGovern, who owned an excavation company and had been denied permits to dig trenches for laying gas pipes under public streets without providing a bond guaranteeing restoration of the pavement after completion of work as required by local law. He argued that this requirement violated his rights under both state law and the Fourteenth Amendment's due process clause because it did not provide him with equal protection or just compensation for his property taken for public use. The court disagreed with McGovern’s arguments stating that cities have inherent power to manage their own affairs including regulating use of their streets which is essential for safety and convenience of its citizens; hence such regulation does not constitute taking private property without just compensation nor deny equal protection under laws.

In the dissenting opinion for McGovern v. City of New York, Justice Holmes disagreed with the majority's decision to uphold a law that prohibited bricklayers from working on buildings over 75 feet tall unless they were citizens or had declared their intention to become citizens. He argued that this requirement was not related to public safety and therefore violated the Fourteenth Amendment’s Equal Protection Clause. According to him, there was no rational basis for believing that non-citizens would be less competent at bricklaying than citizens, making it an arbitrary and discriminatory restriction on employment rights based solely on nationality status. Furthermore, he contended that if such laws were allowed under police power justifications then any profession could potentially be restricted in similar ways without valid reason.