King v. City of Clarksdale

• Decision Date: 09 May 1966
• Docket Number: No. 44042,44042
• Citation: 186 So.2d 228
• Parties: Willie KING v. CITY OF CLARKSDALE.
• Court: Mississippi Supreme Court

Page 228

186 So.2d 228

Willie KING v. CITY OF CLARKSDALE.

No. 44042.

Supreme Court of Mississippi May 9, 1966.

Carsie A. Hall, Jackson, Jack Greenberg, Charles H. Jones, Jr., Melvyn Zarr, New York City, for appellant.

William H. Maynard, Clarksdale, James A. Phyfer, Jackson, James E. Upshaw, Clarksdale, for appellee.

JONES, Justice:

Appellant was convicted in the Municipal Court of the City of Clarksdale on a charge of parading without a permit. The conviction was affirmed by the county court and by the circuit court from whence it comes here.

The proof showed no disorderly conduct nor any distracting activity, and we are compelled to reverse the case and dismiss the appellant.

The sole question argued by appellant is the unconstitutionality of the city ordinance under which he was convicted. The first section thereof reads as follows:

'That it shall be unlawful for any person, or persons, to conduct or participate in any parade or marching on the sidewalks or streets of the City of Clarksdale, Mississippi, or to move or stand on said sidewalks or streets, carrying banners, placards, signs or the like, or to sit or lie on the sidewalks or streets or curbs of said City, or for any person, or persons, to engage in shouting, singing, orating, public speaking, or any other distracting activities of any kind on any of the sidewalks or streets of the City of Clarksdale, Mississippi, without the written permission of the Chief of Police of said City.'

It will be seen that this ordinance confers upon the chief of police of the city unrestricted discretion as to who shall or shall not parade or march on the sidewalks or streets of the city, with no standards as to time, place of marching or any other feature.

In Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed 1049 (1941), a somewhat similar ordinance was held valid by the Supreme Court of the United States because of the construction placed thereupon by the New Hampshire court. The Court said:

'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. As regulation of the use of the streets, for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949; Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 516, 59 S.Ct. 954, 963, 964, 83 L.Ed. 1423; Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 306, 307, 60 S.Ct. 900, 904, 84 L.Ed 1213.' (312 U.S. at 574-575, 61 S.Ct. at 765, 85 L.Ed. at 1052-1053.)

With reference to the Supreme Court of New Hampshire, the Court in that same opinion said:

'* * * But the court held that the licensing board was not vested with arbitrary power or an unfettered discretion; that its discretion must be exercised with 'uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination'; that a 'systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the statutory mandate'. The defendants, said the court, 'had a right, under the act, to a license to march when, where and as they did, if after a required investigation it was found that the convenience of the public in the use of the streets would not thereby the unduly disturbed, upon such conditions or changes in time, place and manner as would avoid disturbance'.

'If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right.' (312 U.S. at 576, 61 S.Ct. at 766, 85 L.Ed at 1053-1054.)

Following that case, the Supreme Court of the United States had before it Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), where the Court considered a somewhat similar statute of the State of Louisiana under which appellant was convicted. There, the Court said:

'* * * The statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. Nor are there any administrative regulations on this subject which have been called to our attention. From all the evidence before us it appears that the authorities in Baton Rouge permit or prohibit parades or street meetings in their completely uncontrolled discretion.

'The situation is thus the same as if the statute itself expressly provided that there could only be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective enforcement. A long line of cases in this Court makes it clear that a State or municipality cannot 'require all who wish to disseminate ideas to present them first to police authorites for their consideration and approval, with a discretion in the police to say some ideas may, while other may not, be * * * disseminate (d) * * *.' Schneider v. State of New Jersey, supra, 308 U.S. 147 at 164, 60 S.Ct. 146, ...