State v. Frinks

• Decision Date: 25 January 1974
• Docket Number: No. 84,84
• Citation: 284 N.C. 472,201 S.E.2d 858
• Parties: STATE of North Carolina v. Golden FRINKS.
• Court: North Carolina Supreme Court

Page 858

201 S.E.2d 858

284 N.C. 472

STATE of North Carolina v. Golden FRINKS.

No. 84.

Supreme Court of North Carolina.

Jan. 25, 1974.

Atty. Gen. Robert Morgan by E. Thomas Maddox, Jr., Associate Attorney for the State.

Paul, Keenan & Rowan by James E. Keenan, Durham, for defendant appellant.

BRANCH, Justice.

Defendant contends that Article VII of the Wilson City Code is a nullity because it contravenes his individual rights of assembly, petition and freedom of speech as guaranteed by the First Amendment to the Constitution of the United States and by Article I, Sec. 12 and Article I, Sec. 14 of the North Carolina Constitution and, therefore, the warrant charging him with the violation of that Article of the City Code should have been quashed.

He offers a three-pronged argument to support this contention.

His first and principal argument is that Article VII of the Wilson City Code fails to contain definite, objective criteria to guide the licensing authority in issuing or refusing to issue parade permits.

At the threshold of our consideration of the questions here presented, we note the well-recognized rule that where a statute or ordinance is susceptible of two interpretations, one constitutional and one unconstitutional, the courts should adopt the interpretation resulting in a finding of constitutionality. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902; Finance Co. v. Leonard, 263 N.C. 167, 139 S.E.2d 356; and Nesbitt v. Gill, 227 N.C. 174, 41 S.E.2d 646.

We think that the law pertinent to decision of the question presented by defendant's first argument is stated in the cases of Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, decided 31 March 1941 and Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162, decided 10 March 1969.

In Cox v. New Hampshire, Supra, the defendants were five Jehovah's Witnesses who were convicted in the Municipal Court of Manchester, New Hampshire, for violation of a state statute prohibiting a parade without a special license.

The statute was silent as to the criteria governing the granting of permits, stating only:

'Any city may create a licensing board to consist of the person who is the active head of the police department, the mayor of such city and one other person who shall be appointed by the city government, which board shall have delegated powers to investigate and decide the question of granting licenses under this chapter, and it may grant revocable blanket licenses to fraternal and other like organizations, to theatres and to undertakers.' New Hampshire, P.L.Chap. 145, § 3.

Upon defendants' appeal to the New Hampshire Supreme Court, that court in refusing to overturn defendants' conviction, construed the challenged ordinance to mandate a systematic, consistent and just manner of treatment with reference to the convenience of the public use of highways and to require the licensing board to exercise its discretion in granting or denying permits in a uniform and reasonable manner, free from improper considerations or unfair discrimination. The defendants appealed to the United States Supreme Court. In affirming the decision of the New Hampshire Supreme Court, Chief Justice Hughes, speaking for the Court, in part, stated:

'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. . . .'

'. . . As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949 (953); Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 516, 59 S.Ct. 954, 963, 964, 83 L.Ed. 1423 (1436, 1437); Schneider v. Irvington, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (164); Cantwell v. Connecticut, 310 U.S. 296, 306, 307, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1219, 1220), 128 A.L.R. 1352.'

Chief Justice Hughes then acknowledged the aid given to the U.S. Supreme Court by the construction of the statute by the New Hampshire Court and referring to that Court's construcion of the statute, stated:

'. . . the state court considered and defined the duty of the licensing authority and the rights of the appellants to a license for their parade, with regard only to considerations of Time, place and Manner so as to conserve the public convenience. The obvious advantage of requiring application for a permit was noted as giving the public authorities notice in advance so as to afford opportunity for proper policing. And the court further observed that, in fixing time and place, the license served 'to prevent confusion by overlapping parades or processions, to secure convenient use of the streets by other travelers, and to minimize the risk of disorder . . .'.' (Emphasis added.)

The constitutionality of a city ordinance regulating the issuance of permits for a parade upon city streets was again considered by the United States Supreme Court in the case of Shuttlesworth v. Birmingham, Supra. There, Shuttlesworth was convicted of violating a Birmingham, Alabama ordinance making it an offense to participate in any "parade or procession or other public demonstration' without first obtaining a permit from the City Commission.' The Birmingham ordinance, in part, provided:

'The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.'

The ordinance also required that the purpose for which the parade was to be held be set out in the written application.

More than a week before the proposed march, Shuttlesworth sent a representative to apply for a parade permit. Commissioner Connor denied the representative's request telling her, 'No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail.' Two days later, Shuttlesworth requested by telegraph a permit to picket, to which Commissioner Connor replied, 'I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.' Despite the denial of a permit, Shuttlesworth led a group of 52 people, two abreast in orderly fashion, some four blocks on a Birmingham street. The marchers did not interfere with pedestrians or block public streets. Shuttlesworth was arrested and upon trial was convicted of violating this ordinance.

The Alabama Court of Appeals reversed Shuttlesworth's conviction, holding that the ordinance had been applied in a discriminatory fashion, and was unconstitutional in that it imposed an 'invidious prior restraint' without providing ascertainable standards for the granting of permits. Shuttlesworth v. Birmingham, 43 Ala.App. 68, 180 So.2d 114.

The Alabama Supreme Court construed the ordinance to authorize 'no more than the objective and even-handed regulation of traffic on Birmingham streets' and reversed the Court of Appeals. Shuttlesworth v. Birmingham, 281 Ala. 542, 206 So.2d 348.

The United States Supreme Court granted certiorari. The Court held the ordinance as written and applied to be unconstitutional and reversed the Alabama Supreme Court.

In Shuttlesworth, the Supreme Court recognized the same pertinent principles of law enunciated in Cox, but refused to affirm Shuttlesworth's conviction under the state court's interpretation of the ordinance. The Shuttlesworth decision, however, did Not reverse, but distinguished Cox. In so doing the Court, after reviewing the relevant circumstances of the case before it Inter alia, stated:

'. . . The petitioner was clearly given to understand that under no circumstances would he and his group be permitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place were selected that would minimize traffic problems. There is no indication whatever that the authorities considered themselves obligated--as the Alabama Supreme Court more than four years later said that they were--to issue a permit 'if, after an investigation (they) found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.'

'This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was nothing to show 'that the statute has been administered otherwise than in the . . . manner which the state court has construed it to require.' Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, 'to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places.' . . .'

Here the ordinance under attack is codified under the general heading of Traffic, and its language is directed to the Time, place and Manner of parades. It imposes no restraint upon speech concerning political matters or matters of public concern. Neither does it contain any inkling of discrimination against defendant or his associates.

The only provision possibly restrictive of expression precludes Distribution of materials while Riding in a parade....