City of Darlington v. Stanley

• Decision Date: 28 July 1961
• Docket Number: No. 17812,17812
• Citation: 239 S.C. 139,122 S.E.2d 207
• Court: South Carolina Supreme Court
• Parties: CITY OF DARLINGTON, Respondent, v. Arthur W. STANLEY, Jr., Jerry Wingate, John Netties, and Willie Lee Johnson, Appellants.

Page 207

122 S.E.2d 207

239 S.C. 139

CITY OF DARLINGTON, Respondent, v. Arthur W. STANLEY, Jr., Jerry Wingate, John Netties, and Willie Lee Johnson, Appellants.

No. 17812.

Supreme Court of South Carolina.

July 28, 1961.

Jenkins & Erry. Columbia, Elliott D. Turnage, Darlington, for appellants.

Jerome F. Pate, Darlington, for respondent.

OXNER, Justice.

Appellants were convicted in the Municipal Court of the City of Darlington of 'Staging a parade or procession on the streets' without a permit, in violation of the following ordinance:

'Whereas, the City Council of the City of Darlington deems it necessary for the preservation of the health, welfare and protection of the citizens of the City of Darlingtonn, also for the preservation of the peace and dignity of said citizens, as well as to maintain law and order, to prohibit parades and processions within the corporate limits of the City of Darlington, without applicants desiring to stage said parades or processions having first applied for and secured a special permit from the City Council of the City of Darlington to use the public streets and sidewalks for said parades and processions as hereinafter provided.

'Now, therefore, be it ordered and ordained by the City Council of the City of Darlington in council assembled and by authority thereof:

'Section 1. That on and after the adoption and ratification of this Ordinance, it shall be unlawful for any person or persons, firms or organizations to stage any parade or procession on any of the streets or in any other public places within the corporate limits of the City of Darlington without first having applied for and secured a special permit from the City Council to do so, excepting funeral processions, the armed forces of the U. S. Army or Navy, the military forces of this State and the force of the police and fire departments of the City of Darlington.

'Section 2. Such application shall contain the following information: the time of such proposed parade o procession, the streets to be used, the number of persons or vehicles to be engaged and the purpose of such parade or procession; and, upon receipt of such application, the Mayor or City Council shall, in its discretion, issue such permit subject to the public convenience and public welfare.'

(We have omitted Section 3, which fixes the penalty for violation of the ordinance, Section 4, which contains the usual clause repealing all ordinaes inconsistent therewith, and Section 5, which fixes the date upon which the ordinance is to become effective. None of these sections has any bearing on the question before us.)

Each of the appellants was sentenced to pay a fine of $55 or to imprisonment for a period of thirty days. Their conviction was sustained by the Circuit Court. This appeal followed.

Appellants admit that without making any attempt to obtain a permit, they engaged in a parade or procession in violation of the ordinance. We are, therefore, not called upon to determine whether the stipulated facts upon which the case was tried show a parade or procession within the meaning of the ordinance. The sole contention made in the Circuit Court and here is that the ordinance is unconstitutional in that (1) it fixes no standard or guide for the granting or denial of a permit and leaves the matter to the uncontrolled will fo the City Council, and (2) it deprives appellants of their right of freedom of speech and assembly guaranteed by Section 4 of Article 1 of the Constitution of South Carolina and the right of freedom of speech and assembly guaranteed by the Fire Amendment to the Constitution of the United States, which is protected by the Due Process Clause of the Fourteenth Amendment against invasion by state or municipal action.

As stated by Mr. Justice Jackson in Kunz v. People of the State of New York, 340 U.S. 290, 71 S.Ct. 312, 320, 95 L.Ed. 280, 'cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes.' For a long number of years ordinances of this character have been in effect in most of the municipalities of South Carolina. Authority to enact same is given by Section 47-61 of the 1952 Code.

We shall first determine whether the ordinance denies the constitutional guaranty of freedom of speech and assembly. Although those rights are fundamental, they are not in their nature absolute and must be exercised in subordination to the general comfort and convenience and in consonance with peace and good order. In Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 766, 97 L.Ed. 1105, 30 A.L.R.2d 987, the Court said: 'The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquility without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion.'

The right to engage in a parade is one phase of the exercise of the fundamental right of free speech. But such rights is subject to reasonable and non-discriminatory regulation and limitation. 25 Am.Jur., Highways, Section 190; 16 C.J.S. Constitutional Law § 213(8); 64 C.J.S. Municipal Corporations § 1769; Annotation 40 A.L.R. at page 954. It is common knowledge that parades or assemblages may disrupt traffic, both pedestrian and vehicular, and destroy the primary purpose of the streets as a means of travel and transportation from place to place. Municipal authorities are charged with the duty of maintaining safety and order upon the streets for the comfort and convenience of the community. This problem was well analyzed by Chief Justice Hughes in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 133 A.L.R. 1396, in the following language:

'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. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in order circumstances would be entitled to protection. * * * 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.'

In construing this ordinance, it will be presumed that the City Council of Darlington had in mind a constitutional rather than an unconstitutional purpose. Powell v. Thomas, 214 S.C. 376, 52 S.E.2d 782. It will not be declared unconstitutional if by any reasonable construction, it can be harmonized with the State and Federal Constitutions. Jones v. Prudential Insurance Co., 210 S.C. 264, 42 S.E.2d 331; Byrd v. Lawrimore, 212 S.C. 281, 47 S.E.2d 728.

We think it is obvious that this ordinance was not designed to suppress in any manner freedom of speech or assembly but to reasonably regulate the use of the streets in the public interest. It does not seek to control what may be said on the streets either by speech or by writing, and is applicable only to organized formations of persons using the streets and not to individuals or groups who are not engaged in a parade or procession. As stated in the preamble, the City Council deemed this enactment necessary 'for the preservation of the health,...