Commonwealth v. Surridge

• Decision Date: 03 January 1929
• Citation: 265 Mass. 425,164 N.E. 480
• Parties: COMMONWEALTH v. SURRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 425

164 N.E. 480

COMMONWEALTH

v.SURRIDGE.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 3, 1929.

Report from Superior Court, Essex County.

Stephen J. Surridge was convicted of obstructing a public way, and the case was reported. Exceptions overruled.W. G. Clark, Dist. Atty., of Gloucester, and E. F. Flynn, Asst. Dist. Atty., of Lynn, for the Commonwealth.

Peter J. Walsh, of Lynnfield, for defendant.

RUGG, C. J.

The defendant was charged with the common-law offense of obstructing a public way in Lynn. Commonwealth v. King, 13 Metc. 115.Commonwealth v. New York Central & Hudson R. R. Co., 202 Mass. 394, 397, 88 N. E. 764,23 L. R. A. (N. S.) 350, 132 Am. St. Rep. 507,16 Ann. Cas. 587. The case was submitted on an agreed statement of facts, the defendant having waived in writing his right to a trial by jury. Commonwealth v. Kemp, 254 Mass. 190, 150 N. E. 172. After a finding of guilty and a stay of sentence, the case was reported with the consent of the defendant for the determination of the question of law involved. G. L. c. 278, § 30.

The agreed facts are in substance that, pursuant to an ordinance, the defendant was granted a permit by the city council of Lynn to speak on Thursday evenings between August 30, 1927, and October 15, 1927, at a specified place on a public way known as State Street. On the evening of the day named in the complaint a crowd of people assembled at the specified place on State Street, some standing in that part of the public way used for vehicles and others on the sidewalk, and to them the defendant, from a box in the part of the traveled way used for vehicles, made a speech touching the right of the people to assemble in or use the streets for the purposes of free speech.

[1] The right of the people ‘in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances,redress of the wrongs done them, and of the grievances they suffer,’ is secured by article 19 of the Declaration of Rights. The right is indubitable. The importance to the public welfare of this constitutional guaranty has been recognized and scrupulously upheld by the courts. Commonwealth v. Porter, 1 Gray, 476, 478.Wheelock v. Lowell, 196 Mass. 220, 81 N. E. 977,124 Am. St. Rep. 543,12 Ann. Cas. 1109. In the latter decision is a collection of statutes enacted to secure opportunity under proper auspices for the exercise of this right. This, although a constitutional right, cannot be exercised at times and places and in circumstances in conflict with the enjoyment of other well-recognized rights of individuals or the public. It hardly could be contended that any individual or any number of individuals could go upon land of another, in opposition to the wishes of the owner, in order there to exercise the right of free speech; or that in the pretended exercise of such right one might slander or libel another with impunity. See Commonwealth v. Boston Transcript Co., 249 Mass. 477, 482, 144 N. E. 400, 35 A. L. R. 1.

By the location of a highway an easement of passage is secured for the public with all incidental privileges thereby implied. The fee of the land commonly remains in the owner, who may make any use of it not inconsistent with the paramount right of the public. The easement of passage for the public acquired by the layout of a highway includes reasonable means of...