Kenyon v. City of Chicopee

• Citation: 320 Mass. 528,70 N.E.2d 241
• Parties: KENYON et al. v. CITY OF CHICOPEE et al.
• Decision Date: 09 December 1946
• Court: United States State Supreme Judicial Court of Massachusetts

320 Mass. 528

70 N.E.2d 241

KENYON et al.

v.CITY OF CHICOPEE et al.

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 9, 1946.

Suit by Jesse Kenyon and others against City of Chicopee and others for a decree that city ordinance prohibiting distribution of handbills, circulars, etc., is unconstitutional and void, and for injunctive relief. From a final decree of dismissal, plaintiffs appeal.

Interlocutory decrees sustaining demurrers and final decree of dismissal reversed.Appeal from Superior Court, Hampden County.

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

H. C. Covington, of Covington, N. Y., and A. A. Albert, of Boston, for plaintiffs.

W. M. Shea, City Sol., of Chicopee, for certain defendants.

C. A. Barnes, Atty. Gen., and W. S. Kinney, Asst. Atty. Gen., for certain defendants.

QUA, Justice.

This cause is here upon the appeal of the plaintiffs from a final decree dismissing the bill after the sustaining of demurrers of all the defendants. The appeal from the final decree also opens for revision here the interlocutory decrees sustaining the demurrers. G.L.(Ter.Ed.) c. 214, § 27; Gibbons v. Gibbons, 296 Mass. 89, 4 N.E.2d 1019.

The ten plaintiffs are all ‘Jehovah's witnesses.’ The defendants are the city of Chicopee, one Bourbeau, Mayor of the city, one Linehan, its chief of police, one Shea, its city solicitor, one O'Connor, described as ‘Clerk of Courts and Attorney for the Commonwealth in the District Court of Chicopee,’ which we construe as meaning clerk of the District Court of Chicopee, and one Vigeant, the judge of that court.

A brief summary of allegations of the bill in so far as they need be stated is as follows: The plaintiffs and others of ‘Jehovah's Witnesses' made arrangements for a series of public lectures to be delivered in Chicopee in the spring of 1945 and prepared to advertise them by distributing to passers-by on the sidewalks leaflets inviting them to attend. From June 9, 1945, until the filing of the bill the defendants conspired to deprive the plaintiffs of ‘their right of freedom to worship Almighty God, freedom of speech, of press and of assembly’ and to stop their work by enforcing a purported ordinance of the city which after forbidding the placing of dirt, filth, or rubbish in streets or public places, further provides that no person ‘shall * * * distribute or cause to be distributed or thrown, any handbills, circulars, pamphlets, advertisements or other papers, except newspapers * * *.’ Pursuant to said conspiracy on June 9, 1945, police officers of Chicopee, acting under the direction of the defendant Linehan, arrested two of the plaintiffs for violating the ordinance. On June 16, pursuant to said conspiracy, the defendants ‘caused’ the arrest of one of the plaintiffs while engaged in distributing handbills on the streets. On June 23, the plaintiffs appeared on the streets to distribute handbills advertising a lecture to be given the following afternoon. Pursuant to their conspiracy the ‘defendants caused’ the arrest of several of the plaintiffs. On each occasion of the arrest of plaintiffs the persons arrested were held in jail for several hours until bail could be obtained and afterwards were tried and found guilty, on the first two occasions by the defendant Vigeant, notwithstanding that he was shown decisions of the Supreme Court of the United States holding such an ordinance unconstitutional, and on the third occasion by a judge whose name is not stated. On each occasion fines were imposed, and the plaintiffs furnished appeal bonds.

There are further allegations that the defendants have threatened to continue and will continue false arrests, under the purported authority of the ordinance, of the plaintiffs and of any of ‘Jehovah's Witnesses' found distributing the described literature in Chicopee, although the defendants well know that the ordinance is unconstitutional and void; that the arrests of the plaintiffs are, and future prosecutions would be, malicious and unlawful; that such arrests are part of the conspiracy among the defendants; that the plaintiffs' means of paying bail fees and of posting bail and appeal bonds are exhausted; that the plaintiffs' activities in Chicopee have been seriously interfered with and stopped; that the defendants' acts and threatened acts have caused and will continue to cause irreparable injury to the plaintiffs unless injunctive relief is granted; and that the plaintiffs have no adequate remedy at law. Nowhere in the bill is there any allegation that the activities of the plaintiffs involved the sale of anything or the making of a profit, or that such activities disclosed any of the attributes of a commercial enterprise, or that any property rights of the plaintiffs were infringed, unless the right to advertise by handbills in the streets free religious lectures can by some stretch be called a property right. The prayers are that the ordinance be decreed unconstitutional and void, and for injunctive relief.

There can be no question that the part of the ordinance which wholly forbids the distribution of handbills, circulars, pamphlets, and advertisements, even if limited to distribution in public ways and public places-a limitation not wholly clear from the wording of the ordinance-is unconstitutional, when applied to advertisements of religious meetings, under decisions of the Supreme Court of the United States and of this court by which every court in the Commonwealth is bound. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155;Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869;Commonwealth v. Anderson, 308 Mass. 370, 32 N.E.2d 684;Commonwealth v. Pascone, 308 Mass. 591, 593, 594, 33 N.E.2d 522. Compare Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262.

The demurrers of the defendants O'Connor and Vigeant, unlike the demurrer of the other defendants, are grounded solely on want of equity in that the bill does not allege that any property rights of the plaintiffs are being jeopardized. We confine our consideration of the demurrers of the defendants O'Connor and Vigeant to the single cause set forth therein and do not touch any other possible objections to the bill which either of these defendants might have urged. Lascelles v. Clark, 204 Mass. 362, 372, 90 N.E. 875;Shuman v. Gilbert, 229 Mass. 225, 226, 118 N.E. 254, L.R.A.1918C, 135, Ann.Cas.1918E, 793;Raynes v. Sharp, 238 Mass. 20, 24, 25, 130 N.E. 199. See G.L. (Ter.Ed.) c. 231, § 18; Steffe v. Old Colony Railroad Co., 156 Mass. 262, 263,30 N.E. 1127. We do not inquire whether the allegations of participation by these defendants in the alleged wrong are sufficiently concrete and specific to make out a good bill either on the ground of true conspiracy or on the ground of joint tort. See Fleming v. Dame, 304 Mass. 46, 22 N.E.2d 609, and cases cited. Neither do we inquire whether either of these defendants could have availed himself of the doctrine of judicial immunity. See Pratt v. Gardner, 2 Cush. 63,48 Am.Dec. 652;Raymond v. Bolles, 11 Cush. 315;Allard v. Estes, 292 Mass. 187, 197 N.E. 884;Andersen v. Bishop, 304 Mass. 396, 23 N.E.2d 1003. As to these two defendants we inquire only whether, in the precise circumstances stated in the bill in this case, relief must be denied on the sole ground that equity will not grant relief where no property right is involved. This brings us squarely to the principal question in the case, decisive as to the defendants O'Connor and Vigeant, but important also as to the other defendants, since they too demur on the ground that no property rights are in jeopardy, although they add other grounds of demurrer to which consideration must be given later in this opinion.

It is said that the formula that equity protects only property rights had its principal origin in dicta of Lord Eldon in Gee v. Pritchard, 2 Swanst. 402, decided in the year 1818. See Roscoe Pound in 29 Harv.L.Rev. 640 at 642. At all events, the formula has been repeated with little or no qualification in numerous cases in many jurisdictions. Illustrative of these are Brandreth v. Lance, 8 Paige Ch., N.Y., 24, 34 Am.Dec. 368;Mead v. Stirling, 62 Conn. 586, 596, 27 A. 591,23 L.R.A. 227;People v. McWeeney, 259 Ill. 161, 172, 102 N.E. 233, Ann.Cas.1916B, 34;White v. Pasfield, 212 Ill.App. 73, 75;Chappell v. Stewart, 82 Md. 323, 33 A. 542,37 L.R.A. 783, 51 Am.St.Rep. 476;Bank v. Bank, 180 Md. 254, 262, 23 A.2d 700;Hutchinson v. Goshorn, 256 Pa. 69, 71, 100 A. 586, and In re Sawyer, 124 U.S. 200, 210, 8 S.Ct. 482, 31 L.Ed. 402. Many cases are collected in 14 A.L.R. 295, 296. In this Commonwealth the same formula was approved in Worthington v. Waring, 157 Mass. 421, 423, 32 N.E. 744,20 L.R.A. 342, 34 Am.St.Rep. 294, conceded in Choate v. Logan, 240 Mass. 131, 134, 135, 133 N.E. 582, and stated as ‘a general rule’ in Kirby Post No. 50, American Legion Department of Massachusetts v. American Legion, 258 Mass. 434, 155 N.E. 462, but was not there applied because a ‘sequestration’ of the plaintiff's personal property in the form of furnishings and equipment was held to be involved. There are occasional dicta recognizing the rule in others of our cases. See Kelley v. Board of Health of Peabody, 248 Mass. 165, 168, 143 N.E. 39;Mullholland v. State Racing Commission, 295 Mass. 286, 290, 3 N.E.2d 773; Mayor of Cambridge v. Dean, 300 Mass. 174, 175, 14 N.E.2d 163. See, however, Shuman v. Gilbert, 229 Mass. 225, 228, 118 N.E. 254, L.R.A.1918C, 135, Ann.Cas.1918E, 793.

But it has long been held that the protection which equity throws over property rights is not limited to the prevention of injury to specific tangible property and includes in proper cases the prevention of unlawful interference with the plaintiff's right to carry on business in general, Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307,9 Am.St.Rep. 689;Burnham v. Dowd, 217 Mass. 351, 359, 104 N.E. 841, 51 L.R.A.,N.S., 778, and even extends...