Commonwealth v. Gilfedder

• Decision Date: 02 June 1947
• Parties: COMMONWEALTH v. GILFEDDER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 335

73 N.E.2d 241

COMMONWEALTH

v.GILFEDDER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1947.

Exceptions from Superior Court, Suffolk County; Morley, Judge.

Lawrence Gilfedder, Norman Tubiash, Francis Votano, Arthur W. Blomen, and Joseph F. Massida were convicted of making orations on Boston Common without a permit from the mayor, and Marie Philips was convicted of distributing pamphlets on Boston Common without a permit, and they bring exceptions.

Exceptions sustained.J. L. Saltonstall, Jr., and S. C. Rand, both of Boston, for defendants.

J. F. McAuliffe, Asst. Dist. Atty. of Boston, for Commonwealth.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

QUA, Justice.

The complaints in five of these cases charge that the defendants did ‘make an oration’ on Boston Common without a permit from the mayor. The complaint in the remaining case, that against the defendant Philips, charges that she did ‘distribute pamphlets' on Boston Common without a permit from the mayor. In the Superior Court each defendant was found guilty and fined $1. The defendants' exceptions bring the cases here.

Park commissioners, in general, have statutory authority to make rules for the use of parks within their jurisdicions, St. 1875, c. 185, § 3 (relating to Boston). G.L.(Ter.Ed.) c. 45, § 5. Commonwealth v. Crowninshield, 187 Mass. 221, 72 N.E. 963,68 L.R.A. 245. In addition to these statutes, on the days mentioned in the complaints there were ‘in full force and effect.’ according to the record, sections 3 and 6 of c. 22 of the Revised Ordinances of Boston, which provided respectively that the board of park commissioners should ‘supervise, and regulate the use of, all parks, public grounds, playgrounds, baths and beaches * * *,’ and that the board, with the approval of the city council, might ‘establish from time to time regulations for the use and government of parks.’ According to the record, there were also ‘in full force and effect’ in Boston sections 2 and 4 of the General Rules of the Board of Park Commissioners, which provided respectively that no person should ‘preach, or pray aloud, or make any oration or harangue excepting on Franklin Field and on Boston Common when so authorized in a written permit of the Board of Park Commissioners or His Honor the Mayor,’ and that no person should, ‘except in a place designated by or as authorized in a rule, or regulation, or a written permit of the Board of Park Commissioners * * * sell, or distribute any goods, wares or circulars, or any other thing * * *.’ At the same time, according to the record, there was ‘in full force and effect’ another ordinance, section 81 of c. 39 of the Revised Ordinances, which provided in part that no person should, ‘in any of the public grounds, make a public address * * * except in accordance with a permit from the mayor.’ It seems difficult to reconcile section 2 of the General Rules of the Board of Park Commissioners with section 81 of c. 39 of the ordinances, since the former distinguishes Franklin Field and Boston Common for special treatment and pvovides for a permit from the park commissioners as an alternative to that from the mayor required by the ordinance. However, the grounds of this decision render unnecessary any attempt to resolve the seeming inconsistency or to investigate the authority respectively of the city council and of the commissioners.

And in these cases nothing turns upon the peculiar origin and history of Boston Common. It is enough that for many generations past the Common has been a place of general public resort as if dedicated to general part purposes. Steele v. City of Boston, 128 Mass. 583;Lincoln v. City of Boston, 148 Mass. 578, 20 N.E. 329,3 L.R.A. 257, 12 Am.St.Rep. 601;Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113,26 L.R.A. 712, 44 Am.St.Rep. 389;Prince v. Crocker, 166 Mass. 347, 362, 44 N.E. 446,32 L.R.A. 610;Codman v. Crocker, 203 Mass. 146, 149, 89 N.E. 177, 25 L.R.A., N.S., 980; Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583, 586, 587, 99 N.E. 523, 42 L.R.A., N.S., 215. For the purposes of the present cases it may be treated as would be any other public park.

Although the complaints conclude ‘against * * * the form of the statute’ as well as against the rules claimed to have been violated, we are aware of no statute forbidding the acts charged against the defendants, and the prosecutions appear to be based wholly upon the ordinances and the rules and regulations of the commissioners. It may be doubted whether the complaints charge any violation of the rules of the commissioners, since they do not negative a permit from the commissioners, which is an alternative to the permit from the mayor under section 2 of the rules and is the only permit required under section 4 of the rules. But it would seem that at least the defendants other than Philips are charged with a violation of section 81 of c. 39 of the ordinances, if ‘an oration’ is ‘a public address,’ as we suppose it is. It is immaterial that the complaints do not specifically mention the ordinance. G.L. (Ter.Ed) c. 277 §§ 33, 79. Commonwealth v. Kimball, 299 Mass. 353, 354, 355, 13 N.E.2d 18, 114 A.L.R. 1440.

It is possible that some of the questions suggested above might prove decisive of some or of all of these cases in favor of the defendants. But none of these issues has been raised or argued. At the trial all parties stipulated that all parts of the ordinances and rules hereinbefore mentioned were ‘in full force and effect.’ The only questions argued before us were whether the prophibitory provisions with which we are here concerned, contained in section 81 of c. 39 of the ordinances and in the rules, were unconstitutional on their faces or were unconstitutionally applied in these cases. All of the challenged provisions stand or fall together. The issue of constitutionality has been fully argued. Even if we could manage to avoid deciding it now, it would certainly arise again in the near future, and additional expense would be incurred. In these circumstances it seems our duty in the interest both of the parties and of the public to deal with the fundamental issue which will prove decisive of all the cases.

In the view we take, little or nothing depends upon the details of the facts in these particular cases. It may be in order, however, to state some of the facts agreed at the trial. Certain of the defendants other than Philips on July 7, 1946, and the others on July 14, 1946, ‘made orations' on that portion of the Common known as MacArthur Mall. The ‘orations' on July 7 were made on behalf of the Socialist Labor Party of America, and those on July 14 on behalf of the Socialist party of Massachusetts. The defendants were all members of one or the other of these parties. Three of them were duly nominated candidates for public office on the tickets of their respective parties. On July 14 the defendant Philips distributed pamphlets on MacArther Mall on behalf of the Socialist Party of Massachusetts, of which she was a member. The ‘orations' and the distribution of pamphlets were made peaceably and did not obstruct traffic or cause any disturbance or commotion. Neither the ‘orations' nor the pamphlets contained any improper language or advocated the overthrow of the government by force or violence or contained any matter calculated to incite to riot or cause any disturbance or commotion whatever. They were devoted to a discussion of public issues. None of the defendants had permits either from the mayor or from the park commissioners.

In our opinion, the provision of section 81 of c. 39 of the ordinances which forbids the making of public addresses ‘in any of the public grounds' without a permit from the mayor, the provision of section 2 of the General Rules of the Board of Park Commissioners which forbids the making of ‘any oration or harangue’ excepting on Franklin Field and Boston Common and then only when authorized by a permit of the park commissioners or of the mayor, and the provision of section 4 of the rules which forbids the distribution of circulars except in a place designated by, or as authorized in, a rule or regulation (there being no such rule or regulation¹) or permit of the park commissioners are all on their faces in conflict with the rights of freedom of speech, of the press, and of assembly guaranteed by the First Amendment to the Counstitution of the United States, made applicable to the States by § 1 of the Fourteenth Amendment. De Jonge v. State of Oregon, 229 U.S. 353, 364,57 S.Ct. 255, 81 L.Ed. 278;Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155.

A series of recent decisions by the Supreme Court of the United States has, as we read the cases, established the proposition that the exercise of these rights cannot be wholly precluded in public places such as streets and parks by sweeping general prohibitions and cannot be subjected to the requirement of permits the granting of which is not governed by binding rules adequate to insure the exercise of the rights under reasonable conditions. Perhaps the most completely in point of these decisions are Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954,83 A.L.R. 1423;Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (reversing Commonwealth v. Nichols, 301 Mass. 584, 18 N.E.2d 166);Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869;Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; and Tucker v. State of Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed 274. Pertinent also in some aspects are Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949;Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093;Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104;Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352;Largent v. State...