Barton v. City of Bessemer

• Decision Date: 18 March 1937
• Docket Number: 6 Div. 67
• Citation: 173 So. 626,234 Ala. 20
• Parties: BARTON v. CITY OF BESSEMER.
• Court: Alabama Supreme Court

173 So. 626

234 Ala. 20

BARTON v. CITY OF BESSEMER.

6 Div. 67

Supreme Court of Alabama

March 18, 1937

Certiorari to Court of Appeals.

Petition of the City of Bessemer for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Jack Barton v. City of Bessemer, 173 So. 621.

Writ awarded and judgment of Court of Appeals reversed and remanded.

Geo. W Bains, of Bessemer, for petitioner.

Harvey M. Emerson, of Birmingham, opposed.

KNIGHT Justice.

This cause is before this court on petition by the City of Bessemer for a writ of certiorari to the Court of Appeals, to review and revise the opinion and judgment of that court in the case of Jack Barton v. City of Bessemer, 173 So 621.

It appears that the said Jack Barton was tried and convicted for a violation of an ordinance adopted by the City of Bessemer which is in the following words:

"Section One. That it shall be unlawful to print, publish, edit, issue, or knowingly circulate, sell, distribute or publicly display any book, paper, document, or written or printed matter in any form advocating, advising, or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means, or have in possession any such book, paper, document or written or printed matter in any form for the purpose or with the intention of distribution, sale, circulation or display thereof, within the City of Bessemer or the police jurisdiction thereof.

"Section Two. That any person violating this ordinance shall be deemed guilty of a misdemeanor and shall be fined not less than $1.00 nor more than $100.00, and in addition to the fine herein provided for may be sentenced to hard labor for the city for not exceeding one hundred eighty (180) days."

While confined by the City of Bessemer under this conviction, a writ of habeas corpus was applied for by petitioner to secure his release. In this petition it is charged that the confinement was illegal, in that the ordinance under which the said defendant was tried and convicted was unconstitutional and void.

Other grounds to support the petition, and relied upon to show that the imprisonment, or restraint, was illegal, and warranted the discharge of the defendant, were assigned, but the Court of Appeals, in its opinion now under review, did not pass upon such other matters, but confined its ruling to a decision upon the constitutionality of the ordinance in question. Hence the constitutionality vel non of the ordinance is the only question to be now and here determined.

We entertain no doubt but that the petitioner has invoked the proper remedy, if the ordinance, under which he was convicted and imprisoned, was unconstitutional and void. In such circumstances, the court would have no jurisdiction, and the arrest, trial, and conviction of the defendant under the void ordinance would be a nullity, and the petitioner would be entitled to his discharge on habeas corpus. City of Bessemer v. Eidge, 162 Ala. 201, 50 So. 270; Chappell v. State, 156 Ala. 188, 47 So. 329. If, however, the ordinance in question is not obnoxious to any provision of the State or Federal Constitution, or does not contravene some statute law of the State, the petitioner would not be entitled to his discharge on habeas corpus.

It is clearly within the charter powers of the City of Bessemer to adopt and enforce ordinances to conserve and protect the rights of its people, for the preservation of the comfort of the inhabitants, and for their safety and welfare. The preservation of the public peace and order is said to be one of the primary functions of municipal corporations; and certainly, comprehended within these broad powers, is the power to preserve "its own integrity as a government" not inconsistent with the Constitution and statute law of the state, or with the Constitution of the Federal Government.

Section 4 of the Bill of Rights provides: "That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty."

The First Amendment to the United States Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." The concrete question here is, Did these provisions, or either of them, which secure the freedom and liberty of speech and of the press, deprive the municipality of Bessemer of the right to adopt the ordinance in question?

Whether the ordinance under attack was wisely conceived, or whether the evils and dangers sought to be curbed by it would best be met by education, and the exercise of a modicum of patience, we are not called upon to determine. The sole function of the court is to determine the constitutionality of the law as written, not its wisdom or unwisdom.

It is recognized in England, Canada, and in America, in fact, in every English speaking government, that the press is one of the most potent factors in the establishment and maintenance of free government known to an enlightened civilization. The framers of the Constitution of the United States, and of our State Constitution, were not unmindful of this fact when they wrote into these instruments the provisions guaranteeing the freedom of speech and of the press. A free government has never tolerated the muzzling of the press or the stifling of free speech. At most, it has only held those who enjoy this freedom answerable for an abuse thereof. Among the undoubted rights of the press may be mentioned right to advocate change in form of government by peaceful means; to expose incompetency and corruption on the part of those charged with the administration of the affairs of the government; and the right at all times to place before its readers, in printed form, the current happenings of the day.

This constitutional liberty of the press is so intimately interwoven with the right to acquire and hold property, to enjoy life and the pursuit of happiness, that it falls squarely within the protection of section 1 of the Constitution, which guarantees to every citizen the right of life, liberty, and the pursuit of happiness, and also comes within the protection of section 6 of the State Constitution and of the Fourteenth Amendment to the Federal Constitution guaranteeing to every person due process of law, both judicial and legislative. Any denial to the press of this constitutional right by the courts, or by the Legislature, or any limitation superimposed upon this right, save for abuse, would inflict a wound just short of the heart upon this useful agency, so sedulously protected by the Constitution.

So then, in the consideration of the question here involved, the fundamental right of free speech and of the press must be borne in mind. It must also be borne in mind that abuse can only begin where this right of free speech and of the press ends.

We shall approach the question here presented fully cognizant of the fact that the only limitation that can rightfully be placed upon the liberty of the press is that it shall be held responsible for abuse.

Judge Story, in his treatise on the Constitution, in discussing "The freedom of the press and of speech, which Congress, by the First Amendment to the Federal Constitution is prohibited from abridging," says: "That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. *** It is plain, then, that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property or reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert the government." (Italics supplied.) 2 Story on the Constitution (5th Ed.) pp. 634, 635.

The Court of Appeals of New York in People v. Most, 171 N.Y. 423-431, 64 N.E. 175, 178, 58 L.R.A. 509, said: "While the right to publish is thus sanctioned and secured, the abuse of that right is excepted from the protection of the constitution, and authority to provide for and punish such abuse is left to the legislature. The punishment of those who publish articles which tend to corrupt morals, induce crime, or destroy organized society is essential to the security of freedom and stability of the state. While all the agencies of government--executive, legislative and judicial--cannot abridge the freedom of the press, the legislature may control and the courts may punish the licentiousness of the press." (Italics supplied.)

Mr. Tiedeman in his treatise on Limitations of Police Powers, § 81, p. 192, says: "The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as, by their falsehood and malice, they may injuriously affect the standing, reputation, or pecuniary interests of individuals."

"So also, it is not to be inferred from the prohibition of a censorship of the press, that the press, can without liability for its wrongful use, make use of the constitutional privilege for...