Kenyon v. City of Chicopee
| Decision Date | 09 December 1946 |
| Citation | 320 Mass. 528,70 N.E.2d 241 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JESSE KENYON & others v. CITY OF CHICOPEE & others. |
September 19, 1946.
Present: FIELD, C.
J., QUA, RONAN WILKINS, & SPALDING, JJ.
Equity Jurisdiction, Personal rights, Other remedy, Criminal prosecution. Constitutional Law, Freedom of speech, Freedom of the press, Police power, Due process of law, Freedom of religion, Public place. Way, Public: distribution of literature. Municipal Corporations, By-laws and ordinances. Equity Pleading and Practice, Injunction, Demurrer, Parties.
A city ordinance forbidding one to "distribute or cause to be distributed or thrown, any handbills, circulars, pamphlets advertisements or other papers, except newspapers .," even if limited to public ways and public places was unconstitutional and void as applied to the distribution of literature respecting religious meetings.
Equity will protect personal rights by injunction upon the same conditions upon which it will so protect property rights.
The conditions of equitable relief by injunction in general are that, unless relief is granted, a substantial right of the plaintiff will be impaired to a material degree, that the remedy at law is inadequate, and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.
Jurisdiction in equity was shown by averments of a bill brought by certain members of a religious sect against a city, its mayor, its chief of police, its city solicitor, a clerk of a District Court and a judge thereof, in substance that the defendants had conspired to deprive the plaintiffs of "their right of freedom to worship Almighty God, freedom of speech, of press and of assembly" by enforcing a certain ordinance of the city forbidding distribution of handbills, circulars, pamphlets and advertising matter, although the defendants well knew that by decision of the United States Supreme Court ordinances of that character had been declared unconstitutional; that pursuant to such conspiracy the defendants had unlawfully caused arrests, convictions and jailings of the plaintiffs and threatened to continue such practices; and that the plaintiffs had been caused, and would continue to be caused irreparable injury unless injunctive relief were granted.
Legal remedies by defending against repeated unfounded criminal complaints and by bringing successive actions for malicious prosecution or false arrest are not adequate.
A demurrer to a bill in equity based on the general ground of want of equity does not raise questions of form.
Equity will not hesitate to restrain prosecutions for crime where such restraint is a necessary incident of the protection of rights which equity recognizes and protects, although commonly it will leave a person accused of crime to his defence at the trial of an indictment or complaint and will not prejudge the criminal case.
A city was a proper party defendant to a suit in equity seeking relief against the prosecution by its officers of criminal proceedings against the plaintiff for alleged violation of an ordinance known to them to be unconstitutional and void.
BILL IN EQUITY, filed in the Superior Court on July 6, 1945. Demurrers were heard by Donnelly, J., and were sustained.
H. C. Covington of New York, (A.
A. Albert with him,) for the plaintiffs.
W. M. Shea, City Solicitor, for certain defendants.
C. A. Barnes, Attorney General, & W.
S. Kinney, Assistant Attorney General, for certain defendants, submitted a brief.
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, Section 27. Gibbons v. Gibbons, 296 Mass. 89 .
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, 308 U.S. 147. Jamison v. Texas, 318 U.S. 413. Commonwealth v. Anderson, 308 Mass. 370 . Commonwealth v. Pascone, 308 Mass. 591 , 593-594. Compare Valentine v. Chrestensen, 316 U.S. 52.
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. Shuman v. Gilbert, 229 Mass. 225 , 226. Raynes v Sharp, 238 Mass. 20 , 24-25. See G. L. (Ter. Ed.) c. 231, Section 18; Steffe v. Old Colony Railroad, 156 Mass. 262 , 263. 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. Dane, 304 Mass. 46 , 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; Raymond v. Bolles, 11 Cush. 315; Allard v. Estes, 292 Mass. 187; Andersen v. Bishop, 304 Mass. 396 . As to these two defendants we inquire only whether, in the precise circumstances stated...
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