308 Mass. 591 (1941), Commonwealth v. Pascone
| Date | 05 April 1941 |
| Citation | 308 Mass. 591,33 N.E.2d 522 |
| Docket Number | . |
| Parties | COMMONWEALTH v. GEORGE PASCONE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Page 591
March 3, 1941.
Present: FIELD, C.
J., DONAHUE, QUA, DOLAN, & COX, JJ.
Constitutional Law, Freedom of speech, Freedom of the press, Police power, Due process of law, Freedom of religion, Public place. Way, Public: display of placard, distribution and sale of merchandise. Municipal Corporations, By-laws and ordinances. Boston. Placard, Hawkers and Pedlers. Practice, Civil, Exceptions: what questions open.
An ordinance that no pedestrian in any street "shall . . . carry and display any showcard, placard, or sign, except in accordance with a permit from the commissioner of public works," since it was directed against the display itself and not against any quality in it or any circumstances connected with it hostile to the public interest, was unconstitutional on its face as an unwarranted interference with freedom of speech and of the press in violation of Section 1 of art. 14 of the
Amendments to the Federal Constitution.
St. 1907, c.
584, as amended, prohibiting the use or occupation of the public streets of Boston for the purchase, sale, storage or display of articles without a license from the street commissioners, with certain exceptions, is aimed at the proper regulation of the use of such streets for business purposes and on its face is constitutional under the police power; it is not aimed at the dissemination of information and so far as it affects the sale or display of literature is not unconstitutional as an unwarranted interference with freedom of speech and of the press. No automatic exemption from the reasonable requirements of St. 1907, c.
584, as amended, validly enacted under the police power, arises on constitutional grounds from the fact that merchandise sold as described therein consists of pamphlets of a religious nature.
After a conviction following a trial of complaint on the merits, exceptions only to the denial of a motion to dismiss the complaint grounded on its legal insufficiency and unconstitutionality of the statute on which it was based, presented no question as to the sufficiency of the proof.
Page 592
Section 17 of G. L. (Ter. Ed.) c. 101, permitting hawkers and pedlers to sell without a license newspapers, religious publications, and certain other articles, refers to hawkers' and pedlers' licenses and not to the licenses for the use of specified parts of streets in Boston required by
St. 1907, c.
584, as amended.
TWO COMPLAINTS, received and sworn to in the Municipal Court of the City of Boston on May 20, 1940.
On appeal to the Superior Court, the complaints were tried together before Williams, J.
G. E. Lodgen, (J.
Sugarman with him,) for the defendant.
W. J. Foley, District Attorney, & F.
J. Hickey, Assistant District Attorney, for the Commonwealth, submitted a brief.
QUA, J. The complaint in the first case charges the defendant with carrying and displaying a certain showcard while on foot on Washington Street in Boston without a permit from the commissioner of public works of the city in violation of c. 39, Section 37, of the city ordinances.
The complaint in the second case charges that the defendant "did use and occupy" a part of Washington Street "for the purchase, sale, storage and display . . . of certain merchandise, to wit, books and pamphlets," not being materials or appliances used or to be used for public purposes or for building operations, in violation of St. 1907, c. 584, as amended.
At the trial together of the two complaints in the Superior Court on appeal the Commonwealth introduced evidence that near the corner of Washington and Court streets, in Boston, the defendant had been observed on foot, "carrying a sack of literature in the form of pamphlets or booklets, slung over his shoulder and carrying a placard"; that the defendant sold one of the publications entitled "Consolation" to a passerby for money; and that the defendant admitted that he had no license to sell the pamphlets or booklets and that he had no permit from the commissioner of public works of the city to carry and display a placard in the streets. The placard was two feet by one foot in size. On one side was printed, "Consolation dares to print the truth exposing hypocritical rackets 5c per copy," and on the other side was printed, "Exposing unAmerican activities."
Page 593
The defendant testified that he was a member of "Jehovah's Witnesses," ordained by God as a minister; that on this earth he was "a hod carrier"; that he was distributing pamphlets entitled "Consolation," "The Watchtower," and "Refugees" by asking five cents for each publication but giving it free to a person unable or unwilling to pay upon the promise that the person would read it; that he distributed this literature for the purpose of promulgating the religious beliefs of "Jehovah's Witnesses" and "Spreading the word of Almighty God"; and that he carried the two-sided placard for assistance in distributing the publications and alternately turned it from one side to the other.
At the close of the defendant's testimony he presented a motion applicable to both cases entitled "Motion to Dismiss," wherein he moved that the complaints be dismissed and that he be discharged for reasons set forth as follows: "1. The said complaints are invalid and do not state facts sufficient to constitute an offence under the law; and 2. That the ordinances and statutes in question under which the said complaints have been brought have no application to the sale, distribution, or display of religious literature and material, and that so far as said ordinances and statutes purport to include the sale, distribution, or display of religious literature and material they are invalid, void, and unconstitutional in that they deprive the defendant of the rights guaranteed under the First and Fourteenth amendments of the Constitution of the United States."
We deal with the two cases separately. 1. The Commonwealth should have seen to it that at the trial in the Superior Court the ordinance upon which the prosecution in the first case was based was introduced in...
To continue reading
Request your trial