Opinion
April 22, 1940.
October 2, 1940.
Constitutional law — Freedom of speech — Freedom of religion — Street processions — Municipal corporations — Control of highways — Permits.
1. An ordinance of a borough, which provides that all street parades, processions and assemblages or meetings upon any highway, to the interference or exclusion of other citizens in their legal rights in the use thereof, are forbidden unless twenty-four hours notice of the character, time, place and route of the procession or parade, or the object, time and place of the assemblage, is given to the burgess, that the burgess shall have the power to designate by permit the time and place of such assemblage or meeting and as to such procession or parade how much of the streets it will occupy, the time of starting and the length of time of the parade or procession, and that the proper officers of such parade or procession shall be held responsible for the violation of any designation or limitation in the permit, is not invalid, in violation of the due process clause of the Fourteenth Amendment of the Federal Constitution, on the ground that it is vague and indefinite in failing to define what might constitute "interference or exclusion" of other citizens in their legal rights in the use of streets or that it grants to the burgess an uncontrolled discretion in determining whether or not a given procession comes within the terms of the ordinance.
2. A municipality has the right to keep its streets open and available for the movement of people and property, and to maintain good order, and so long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets.
3. On appeal by defendant from the judgment of the county court, following an appeal, duly allowed, from the judgment of the burgess of a borough on a summary conviction for violation of the provisions of an ordinance, which prohibited parades or processions within the borough without a permit, the judgment was affirmed, where it appeared that numerous members of a sectarian order, bearing signs and placards, crowded along the sidewalks of a borough, that the procession was a disturbance to and an interference with the normal evening shopping and pleasure-bound public, that no permit for the procession was issued in accordance with the ordinance, and that defendant at the hearing before the burgess assumed the responsibility for the procession.
Appeal, No. 227, April T., 1940, from judgment of County Court, Allegheny Co., 1939, No. C-847, in case of Commonwealth and Borough of Homestead v. Charles R. Hessler.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Judgment affirmed.
Appeal by defendant from judgment of burgess on a summary conviction for violation of a borough ordinance.
The facts are stated in the opinion by SOFFEL, J., of the court below, McKIM, P.J., SOFFEL and McDONALD, JJ., as follows:
On Saturday evening June 17, 1939, the defendant, together with certain other individuals, was arrested in the Borough of Homestead for violation of Ordinance #532, which prohibits parades or processions without a permit. The defendant and all of the others who were arrested are members of the religious order known as "Jehovah's Witnesses."
There was testimony adduced by the Commonwealth to the effect that some thirty or more members of this religious order, on the particular evening in question, proceeded along the crowded sidewalks of the Borough of Homestead marching two and three abreast with a space of three or four feet between the ranks. They were carrying placards that were attached to poles. On the front appeared this statement, "Religion is a Snare and a Racket." On the back there was a seemingly inconsistent and contrary statement, to-wit: "Serve God and Christ the King." Certain others carried placards bearing the statement, "Fascism or Freedom — Hear Judge Rutherford and Face the Facts", and further announcing the meeting to be held in Homestead several days later. No permit had been issued for this procession.
The defendant testified that the persons walking on the sidewalks with the signs were members of Jehovah's Witnesses; that they were walking single file at least twenty feet apart and that he himself bringing up at the rear was 150 feet behind the person in front of him. He testified that there was no interference with anyone on, or the exclusion of anyone from, the sidewalks. The testimony of the Commonwealth was to the contrary.
The defendant was tried before the Burgess of Homestead on June 19, 1939, found guilty and sentenced to pay a fine of $25 and costs of suit and in default of payment to be committed to the Allegheny County Jail for a period of thirty days. He paid the fine and took an appeal to the County Court of Allegheny County. At the trial of the instant case, the trial judge found the following facts:
1. Forty or more members of the order known as Jehovah's Witnesses, bearing signs as described above, on Saturday night, June 17, 1939, proceeded along the sidewalks of the Borough of Homestead, marching two and three abreast with three to five feet between the ranks.
2. This procession was a disturbance to and an interference with the normal Saturday evening shopping and pleasure-bound public.
3. No permit for this procession was issued in accordance with the terms of Ordinance #532 of the Borough of Homestead.
In accordance with these findings of fact, the defendant was adjudged guilty and the judgment of the Burgess of the Borough of Homestead was affirmed. The case is now before the Court on motions to open judgment and for a new trial and on motion to open judgment and for judgment upon the whole record. The findings of fact are not questioned. The motions are predicated solely on the ground that the ordinance in question violates the due process clause of the Fourteenth Amendment of the Constitution of the United States.
Does Ordinance #532 of the Borough of Homestead Deprive the Defendant of Liberty and Property Without Due Process of Law in Violation of the Fourteenth Amendment of the Constitution of the United States?Section 1 of Ordinance #532 of the Borough of Homestead provides as follows:
"Section I — That all street parades, processions and street assemblages or meetings occupying, marching, or assembling upon any highway, street, lane, alley, way or public square of the Borough of Homestead to the interference or exclusion of other citizens in their legal rights in the use thereof, are forbidden unless written notice of the character, time, place and route of such procession or parade and the names of the officers of the same to be given by Chief Officer thereof not less than twenty-four hours previous to its forming, to the Burgess of the Borough of Homestead, and in case of assemblages or meetings twenty-four hours notice of the object, time and place of such meetings or assemblages shall be given to said Burgess by the person or persons making the application for the permit as hereinafter provided. In pursuance of the aforesaid requirements, and for the purpose of preventing interference with and obstruction of the lawful use of said highways, streets, lanes, alleys, wharves, or public squares of said Borough of Homestead, and the preservation of peace and good order, the Burgess shall have the power to designate by permit, the time and place of such assemblages or meetings and to such processions or parades how much of the streets, lanes, alleys, wharves, or public squares it will occupy, and the time of starting; the length of time of such parade or procession shall be determined upon by the Burgess, and when so designated and approved, the proper officers of said parades or processions shall be held responsible for the violation of any designation or limitation mentioned in said permit."
Study and analysis of this ordinance reveals that it is an attempt on the part of the Borough of Homestead to regulate street parades, processions and street assemblages or meetings within the Borough of Homestead in the interest of the legal rights of its citizens. It is to be noted that the ordinance prohibits all parades, processions — marching — upon any highway, street, lane, alley, way or public square of the Borough where same would interfere or exclude the use thereof by other citizens in their legal rights, unless a permit for same has been issued by the Burgess not less than twenty-four hours previous. For the purpose of preventing interference with and obstruction of the lawful use of said highways, streets, etc., and in the preservation of peace and good order, the Burgess shall have the power to designate by permit the time and place of such procession, how much of the street, etc., is to be occupied, the time of starting and the length of time of the procession. Once this is done, the proper officers in charge of the parade or procession are to be held liable for any violation of the permit.
Counsel for the defendant seeks to bring this ordinance within the prohibitions outlined by the United States Supreme Court in Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423. The Court there held that a street meeting ordinance of Jersey City, New Jersey, which was invoked by municipal authorities to forbid members of the C.I.O. from holding meetings in streets and parks, was void upon its face. In holding the ordinance void, the court declared (p. 964):
"We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. . . . . . . It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent `riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly `prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right."
It is the contention of counsel for defendant that the instant ordinance is vague and indefinite in that it fails to define what might constitute "interference or exclusion" of other citizens in their legal rights in the use of streets, etc. It is further contended that this ordinance [confers] upon the Burgess an uncontrolled discretion in determining whether or not a given procession comes within the terms of the ordinance, and that there are no adequate standards set up for the exercise of the power. The decision in the Hague case is eminently right and proper, but we see no application of it to the facts of the instant case. The New Jersey ordinance required not only a permit for the use of streets or parks for public assemblages, but enabled the Director of Safety to refuse such permit on his mere opinion that such refusal might prevent riots, disturbances, or disorderly assemblage. It was for that reason that the ordinance was held unconstitutional. Even the Hague case enunciates the well established principle that the privilege of a citizen of the United States to use streets and parks is not absolute but relative and must be exercised in subordination to the general comfort and convenience and consonant with peace and good order. However, in the guise of regulation, the right cannot be abridged or denied.
The instant ordinance, in our judgment, is a simple and proper exercise of the police powers of a municipality for the benefit of all of its citizens. There is no discretion of refusal in the Burgess in the instant ordinance, but simply a requirement applying equally to all that in the case of all parades, processions, etc., application for permit be made so that the police officers of the Borough may be prepared to protect the applicants in the exercise of their rights and to preserve law and order. Comfort and convenience in the use of streets is the standard of official action. Freund on Police Power, Section 8, states:
"Custom and a sense of propriety demand of the individual that he subordinate and adopt the exercise of his rights to manifest social interests and requirements, and the disregard of this obligation appears as a wrong."
Our analysis of the ordinance further convinces us that its terms are not "vague and indefinite" and that there is no violation of the principle set out in Connally v. General Construction Co., 269 U.S. 385, to-wit, that a criminal statute must not be "in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application." On the contrary, we believe the terms of the ordinance are sufficiently clear that the average individual can understand its provisions.
It is further to be noted that the individuals who belong to Jehovah's Witnesses are motivated in conduct by the principle that they are called upon to obey God's law, not man's; that having a permit from Jehovah, it is not essential to require a permit from any civil authority. As society is now organized, this seems to be a doctrine fraught with dangers inimical to the rights of the community which, if carried to its logical extent, would permit every member of Jehovah's Witnesses to make for himself the laws that control and regulate his conduct with his fellowmen.
In the case of Schneider v. The State (Town of Irvington), which decision was handed down by the Supreme Court of the United States on November 22, 1939, where the Supreme Court had under consideration the constitutionality of an ordinance requiring a permit to distribute circulars, in a suit brought by Jehovah's Witnesses, the Court recognized the right of a municipality to keep its streets open and available for the movement of people and property and stated law which in our judgment applies to the facts of the instant case.
"Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion."
We therefore conclude that the instant ordinance does not violate the due process clause of the Fourteenth Amendment of the Constitution of the United States.
Defendant adjudged guilty and sentenced. Defendant appealed.
Errors assigned related to the action of the court below in refusing to open the judgment against defendant.
Benjamin C. Sigal, Joseph F. Rutherford and Hayden Covington, for appellant.
P.H. McGuire, for appellee.
Submitted April 22, 1940.
This is an appeal by Charles R. Hessler from the judgment of the County Court of Allegheny County, following an appeal, duly allowed, from the judgment of the Burgess of the Borough of Homestead on a summary conviction for violation of the provisions of ordinance No. 532 of said borough, approved July 7, 1919, which prohibits parades or processions within the borough without a permit.
The opinion of Judge SOFFEL, speaking for the Court below, states the legal issues so clearly, and so completely justifies the judgment appealed from that we affirm the judgment upon that opinion. We feel, however, that it should be added that in the Stipulation on Evidence, which was printed in lieu of the evidence, it was agreed by the parties that at the hearing before the Burgess, this appellant "assumed the responsibility for the procession".
There is nothing in the recent decisions of the Supreme Court of the United States in Schneider v. State (Town of Irvington) 308 U.S. 147, 157; Cantwell v. State of Connecticut, 310 U.S. 296 (ROBERTS, J., May 20, 1940); Carlson v. People (California) 310 U.S. 106 (MURPHY, J., April 22, 1940); Thornhill v. State of Alabama, 310 U.S. 88 (MURPHY, J., April 22, 1940), which rules the present case in favor of the appellant or is not distinguishable from this case on the facts.
See also, Minersville School District v. Gobitis, 310 U.S. 586, (FRANKFURTER, J., June 3, 1940) and Com. v. Palms, 141 Pa. Super. 430, 15 A.2d 481, decided this day.
Judgment affirmed.