State v. Fowler

• Decision Date: 12 August 1952
• Citation: 91 A.2d 27,80 R.I. 85
• Parties: STATE v. FOWLER. Ex. 9264.
• Court: Rhode Island Supreme Court

Page 27

91 A.2d 27

80 R.I. 85

STATE v. FOWLER.

Ex. 9264.

Supreme Court of Rhode Island.

Aug. 12, 1952.

William E. Powers, Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., for State.

Aram A. Arabian, John J. McGrane, of Providence, Hayden C. Covington, Brooklyn, N. Y., for defendant.

FLYNN, Chief Justice.

This is a criminal complaint charging the defendant with violating section 11 of chapter 149 of the ordinances of the city of Pawtucket by making an address to a religious meeting in a public park owned and maintained by that city. The case was tried first in the tenth judicial district court and following defendant's conviction and sentence he duly appealed to the superior court. However, before trial and by leave of court defendant filed a motion to quash the complaint. Thereupon the superior court certified to this court for determination, in accordance with general laws 1938, chapter 545, § 6, as amended by public laws 1940, chap. 941, sec. 2, certain questions of doubt and importance as to the constitutionality of the ordinance.

Upon consideration thereof we held in substance that the ordinance on its face was not designed to interfere with defendant's rights of freedom of speech, or of assembly, or of religion; that it was part of a regulatory and nondiscriminatory ordinance which was enacted many years ago to secure the maximum reasonable and orderly use of the park by the public for rest and recreation; that in effect it was similar in purpose and principle to the one which was involved in the case of Davis v. Massachusetts, 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71; that, since the unequivocal statement of law in the Davis case had not been overruled by the United States supreme court, we could not say beyond a reasonable doubt that the ordinance here was unconstitutional and in violation of the first and fourteenth amendments to the United States constitution; and further that it did not violate similar guaranties of such rights in the constitution of this state. State v. Fowler, R.I., 83 A.2d 67, 68.

Accordingly the case was remitted to the superior court where, after a trial de novo in which jury trial was specifically waived, defendant was convicted and sentenced to pay a fine of $5 and costs. Thereupon he duly prosecuted his bill of four exceptions to this court, but only the first, second and fourth are now being pressed. The third, being neither briefed nor argued, is deemed to be waived under our practice.

The evidence is either admitted or not disputed. The defendant is a resident of Arlington, Massachusetts, and is a minister of the group known as Jehovah's witnesses. He was invited by the local or Pawtucket members of such group to deliver a bible discourse to their assembly to be held in Slater Park on September 3, 1950. The city of Pawtucket owns that park, which has an area of approximately 194 acres and is situated in the residential section of the city. For a great many years it has been maintained as a public park having a variety of facilities for rest and recreation. These range generally from tennis courts to formal gardens. The mere assembly of a group of people, excluding, however, any public address with or without the aid of a sound-magnifying device, could be held without unduly interfering with the use of the park by others.

From 1916 to date use of the park has been regulated in the public interest by the ordinance in question and a nondiscriminatory administration thereof. That ordinance, chapter 149, contains sixteen sections, many of which are unrelated to the exercise of constitutional rights. It appears in full as an appendix to our previous opinion in this case, to which reference is hereby made. State v. Fowler, supra. Section 11 thereof, which is at the base of the instant controversy, reads as follows: 'No person shall address any political or religious meeting in any public park; but this section shall not be construed to prohibit any political or religious club or society from visiting any public park in a body, provided that no public address shall be made under the auspices of such club or society in such park.'

The local members of the group had received permission previously to hold religious assemblies and had used the park for such purposes on two preceding Sundays. However, contrary to the express terms of the ordinance, defendant on September 3, 1950 began to address about 400 persons who had assembled there for a religious meeting. Approximately 150 of the assembly constituted members of the religious group and the other 250 were strangers who had come as invitees to such meeting. The latter probably were not residents of the city.

It is not disputed that defendant began to address the meeting with the aid of a microphone and two 'loud speaker' devices; that he thus proceeded with his address sufficiently to define its religious character before interruption by the police; and that the address as made was admittedly contrary to the literal provisions of the ordinance. After being interrupted politely by the police, defendant was invited to go to the police station where the instant complaint was sworn out and the warrant was issued for his arrest. There is no question of intimidation, excessive force or lack of courtesy on the part of the police before, during or after the meeting. The contrary is admitted.

When the trial was about to commence defendant, with permission of the superior court, made a motion to quash, orally and in writing, on the grounds that the ordinance on its face and as construed and applied is unconstitutional in that it abridges the rights of defendant to freedom of speech, freedom of assembly and freedom of worship, contrary to the provisions of the first and fourteenth amendments to the constitution of the United States and to the provisions of sections 3, 10, and 21 of article I of the constitution of Rhode Island. This motion was denied and is the subject of defendant's first exception.

The defendant concedes in his brief and argument that such motion is based on the identical grounds and raises the same constitutional questions as those involved in the certification which was decided by this court in State v. Fowler, supra. However, he insists that in such opinion we have misconceived the applicable law and have failed to follow the mandate laid down by the United States supreme court in many cases which he again cites; and that we have erroneously relied upon the Davis case which is either not the law or not in point. Especially he now emphasizes the cases of Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 671, 87 L.Ed. 869, and Commonwealth v. Gilfedder, 321 Mass. 335, 73 N.E.2d 241, to show that the earlier case of Davis v. Massachusetts, supra, is no longer the applicable law of the United States in the circumstances here.

In view of the strong argument on this point we have re-examined the many cited cases but we fail to find wherein any of them lays down an express mandate requiring a different conclusion from the one which we reached and expressed previously on the basis of the pertinent law unanimously enunciated by the United States supreme court in the Davis case. In our judgment that case concerned an ordinance which in substance and effect is similar in principle and purpose to the one involved in the instant case. It was part of a general ordinance designed to control and regulate a common or park which was owned by the state or city and was maintained for the general convenience and comfortable use of the public as a whole. Likewise as part of the regulation it permitted in practical effect what amounted to a prohibition of all religious and political addresses to assemblies in that public common or park, much as we have expressly in the ordinance under consideration herein.

Consequently the Davis case is clearly distinguishable from Jamison v. Texas, supra, which is relied on by defendant. There, among other provisions, the ordinance made it unlawful 'to scatter or throw any handbills, circulars, cards, newspapers or any advertising device of any description, along or upon any street or sidewalk in the city of Dallas.' Nothing in that ordinance purported to make it unlawful to distribute religious pamphlets, and yet the gravamen of the complaint there, as viewed from the evidence, was directed solely to the defendant's distribution of religious treatises which had on the back a reference to a book which could be purchased if desired. Therefore on the face of the ordinance and on the facts that case is different from the Davis case.

Moreover the ordinance in Jamison v. Texas, supra, differs still further from the one in the instant case in that the ordinance here expressly recognizes the right of religious groups to assemble and nowhere makes it unlawful to distribute religious pamphlets or to hold religious meetings and services. Therefore the Jamison case does not appear to us to carry any mandate, express or implied, that is applicable to the ordinance and facts of either the Davis case or the one now before this court.

It will serve no useful purpose to repeat what was said previously in our opinion on the certification concerning the numerous cases relied on by defendant, except perhaps to observe that we find it difficult to determine precisely which of the principles of law as stated in certain of the main opinions are actually concurred in by a majority of the justices of the United States supreme court. Likewise in those cases it becomes hard to know, in view of language in the several concurring and dissenting opinions, to what extent some statements of law in the main opinions may have been restricted or inferentially overruled in later cases.

We may again point out, however, that in the Davis case the supreme judicial court of Massachusetts unanimously and unequivocally stated the law applicable to the right of an individual member of the public to use a park or common...