Fitts v. City Of Atlanta

• Decision Date: 26 January 1905
• Citation: 49 S.E. 793,121 Ga. 567
• Parties: FITTS v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

49 S.E. 793

121 Ga. 567

FITTS

v.CITY OF ATLANTA.

Supreme Court of Georgia.

Jan. 26. 1905.

CONSTITUTIONAL LAW — PUBLIC MEETINGS — REGULATION—TITLE OF ACT—CRIMINAL LAW— CONTINUANCE—CERTIORARI—ANSWER — SENTENCE.

1. The ordinance of the city of Atlanta (Municipal Code, § 1841), declaring it unlawful to hold public meetings in the streets of that city without the consent of the municipal authorities, is not unconstitutional, either because it curtails or restricts the liberty of speech, or makes an arbitrary discrimination in favor of some persons against others, or because the city had no legal power to enact it; nor is such ordinance void upon the ground that it is an unreasonable and oppressive exercise of police power.

2. The act approved December 19, 1893 (Acts 1893, p. 173), entitled "An act to amend the charter of the city of Atlanta, to wit: The act incorporating the city of Atlanta, approved February 28th, 1874, " etc., and empowering the mayor and general council of such city to provide by ordinance for the regulation of public meetings and public speaking in its streets by preventing the obstruction of the same or the gathering of disorderly crowds thereon, is not violative of that provision of the Constitution which prohibits the passage of any statute containing matter different from that which is expressed in the title thereof. Sayer v. Brown, 46 S. E. 649, 119 Ga. 539, and cases cited.

3. Where it appeared that the accused violated a municipal ordinance for the previously announced purpose of testing its constitutionality, it was not error to refuse to continue the case made against him merely to give his counsel time to investigate the constitutional questions claimed to be involved therein.

4. The allegations in the petition for certiorari as to the circumstances which it was claimed disqualified the mayor, as acting recorder, to try the petitioner, were not only not verified by the answer, but were expressly denied therein. Neither did the answer verify the statements made in the petition in reference to the petitioner being required, under the sentence imposed, to work upon the public works. "Points made in a petition for certiorari, not verified by the answer of the trial judge, present nothing for determination either by the superior or the supreme court."

5. When the penalty is left by the statute to the discretion of the trial judge, within certain fixed limits, his judgment will not be disturbed upon the ground that the sentence was excessive, if the penalty imposed does not exceed the limit provided.

6. Where complaint was made in a petition for certiorari that the trial court overruled objections to the testimony of named witnesses upon designated subjects, without setting forth, either literally or in substance, the testimony to which the objections were made, an assignment of error that the court erred in overruling such objections was not well taken.

7. The certiorari was properly overruled.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

J. L. Fitts was convicted of violating a city ordinance. From an order of the superior court overruling certiorari, he brings error. Affirmed.

Alonzo Field and A. M. Brand, for plaintiff in error.

James L. Mayson and W. P. Hill, for defendant in error.

FISH, P. J. J. L. Fitts was adjudged guilty, in the recorder's court of the city of Atlanta, of violating a certain municipal ordinance, and sentence imposed on him therefor. He took the case by certiorari to the superior court, where, upon the hearing, the certiorari was overruled. Thereupon he sued out a writ of error to this court. Our learned Brother Lumpkin, who presided in the superior court, rendered an opinion in the case, which comes up in the record, and which is as follows:

"This case presents a contest of strength between 'Prof.' Fitts and a municipal ordinance of the city of Atlanta. The two are diametrically opposed to each other, and one must yield. There is no halfway ground. If the ordinance was a legal and valid ordinance, Prof. Fitts' conduct was illegal. If the professor is right, the ordinance is illegal. The ordinance is contained in the Municipal Code of 1899, and reads as follows: 'Sec. 1841. The president, chairman, or other offi-eer, or committee of men, or any persons who desire or intend to call a public meeting of the citizens of Atlanta, for political purposes, shall notify the mayor, or chief of police, of such desire or intent, and of the time and place of meeting, before said meeting is called, and upon failure to do so, upon conviction thereof shall be fined not exceeding fifty dollars and cost, or be imprisoned in the calaboose of the city not exceeding thirty days, in the discretion of the recorder's court; and upon receiving such notice it shall be the duty of the mayor or chief of police to attend such meeting with a sufficient police force to preserve peace and order: provided, it shall not be lawful to hold any such meeting in any of the public streets of the city of Atlanta without the consent of the mayor and council, or the mayor and chairman of the board of police commissioners of the city of Atlanta; and any person calling or holding any public meeting, in any of the streets of the city of Atlanta, without such consent, shall, upon conviction thereof in the recorder's court of said city, be fined in a sum not exceeding one hundred dollars, or imprisoned not exceeding thirty days, in the discretion of the court.' The plaintiff in certiorari appears to have made two or three speeches on the streets of Atlanta under permit or consent from the mayor and chairman of the board of police commissioners, but his permit was withdrawn. Afterwards he determined to speak on the streets either with or without a permit or consent, and, failing to obtain one, he proceeded in defiance of the ordinance and in spite of it. Handbills were issued and scattered, of which the following is a copy: 'Great Sensation! Testing a City Ordinance. Free Street Lecture on Socialism by Prof. J. L. Fitts of South Carolina. Monday, August 17th, 8 p. m., corner of Broad and Marietta streets. Prof. Fitts has been refused a permit. He will speak under the right guaranteed by the 1st Amendment to the United States Constitution, which was proposed by Jefferson and approved by Washington. If interrupted, the case will be carried to the United States Supreme Court. Shall we, who built the streets, be deprived of their use for lawfully assembling to discuss our condition and needs? Come and see. Be early and get a good place. Don't Block Sidewalks or Streets. The Committee.' The petition states that this was admitted in evidence over objection, on the ground that there was no evidence that said Fitts had it printed or circulated, and it was irrelevant; but there is no assignment of error on any such grounds, nor does the mayor verify this statement in his answer to the writ of certiorari. The answer states that, 'as part of its evidence, the city introduced the poster which Fitts scattered over the city, as set forth in paragraph 10 of the writ of certiorari.' Having gathered his crowd in a public street in the very heart of the business portion of the city, he proceeded to make his test of the ordinance, and speak without any permit or consent. At the appointed time, among those who answered his invitation were members of the police force; and, as he had announced a desire to make a test of the law, they accommodated him by arresting him when he refused to desist from speaking on the street; and on his trial in the recorder's court, the mayor, presiding, adjudged him guilty. He brings the case to this court by writ of certiorari. The assignments of error are numerous, but the leading ground of his attack upon the ordinance is, in substance, that the Constitution of the United States and of the state guaranty freedom of speech, and that under this guaranty he had a constitutional right to hold meetings and make speeches in the streets of Atlanta, and the ordinance which prevented his doing so without a permit or consent of the municipal officers was invalid. In several respects the answer of the mayor to the writ of certiorari does not agree with the petition, and, not being traversed, it must control. The petition is only taken as correct where verified by the answer. Childs v. Moran, 114 Ga. 320, 40 S. E. 271. For instance, the answer contains the following: 'On the night of the arrest of Fitts the permit had been withdrawn, but Fitts spoke in defiance of the authorities of the city, and went out into Marietta street, gathered a crowd around him, and began his speech. The sidewalk was not blocked, but the crowd gathered around Fitts in the street. The language used by Fitts was not obscene or vulgar, but on the night of his arrest he had no permit to speak, issued either from the mayor or any one else. He took a box, and placed same out upon the roadway, and, standing thereon, undertook to gather a crowd around him, and undertook to make a speech.' In the evidence of the chief of police occurred the following: 'The sidewalk was not blocked, but people had gathered around Fitts out in the street. The people in the street, of course, obstructed the street where they stood.' Another witness states that: 'The language of Fitts was not obscene, but was that calculated to arouse strife and discord and cause revolution. He represented the socialists, and seemed to be trying to convert the people to his way of* thinking by a text [attacks] upon the government, legislature, capital, etc' Further on in the answer it is stated that: 'The people gathered around him out in the street, and when they undertook to arrest Fitts a number of his sympathizers became very much excited, and it was necessary to arrest them in order to disperse the assembly.'

"The primary object of streets is for public passage. They should be kept open and unobstructed for that purpose. If damage...