McCoy v. Providence Journal Co.

Citation190 F.2d 760
Decision Date17 July 1951
Docket NumberNo. 4533.,4533.
PartiesMcCOY et al. v. PROVIDENCE JOURNAL CO. et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Aram A. Arabian, Providence, R. I. (J. F. Murphy, Pawtucket, R. I., on the brief), for appellants.

William H. Edwards, Providence, R. I. (Gerald W. Harrington, Edward F. Hindle, and Edwards & Angell, Providence, R. I., on the brief), for appellees.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and SWEENEY, District Judge.

WOODBURY, Circuit Judge.

This is an appeal from a final judgment permanently enjoining the City Treasurer, who is also the Tax Collector, of Pawtucket, Rhode Island, "and all persons acting under or in concert with him," from withholding certain municipal tax abatement resolutions and lists from the plaintiffs, and from preventing them from inspecting those resolutions and lists "at all reasonable times during regular business hours."

The plaintiff, Providence Journal Company, is a Rhode Island corporation engaged in the business of publishing newspapers in the city of Providence which have a wide circulation throughout the state and a substantial circulation in the adjoining city of Pawtucket. The plaintiff, Sevellon Brown, is the editor and publisher of the Providence Journal Company, and as such is the chief executive officer of that corporation. The plaintiff, Joseph A. Kelly, is a reporter for the Providence Journal Company and the manager of its Pawtucket bureau. Both Brown and Kelly are citizens of the United States and of the state of Rhode Island, Brown being a resident of Providence, and Kelly a resident of Pawtucket, where he, and the Providence Journal Company as well, are also tax payers.

The defendant, McCoy, is the Mayor of Pawtucket; the defendant, McAloon, occupies the combined offices of City Treasurer and Collector of Taxes, and the other defendants are the City Clerk, the Assessors of Taxes, and various other executive and legislative officials of that city.

Stated in general terms the complaint alleges that the defendants, acting individually and in concert, have deprived the plaintiffs of rights guaranteed to them by the Federal Constitution in that they have prevented the plaintiffs from gaining access to certain fiscal records of the city of Pawtucket for the purpose of publication, while permitting others in like circumstances to have access to those records for the same purpose.

There is no serious dispute as to the basic facts as found by the court below.

On December 31, 1947, the City Council of the city of Pawtucket, which is a bicameral body consisting of the Board of Aldermen and the Common Council, met in special session and passed a joint resolution abating real and personal property taxes in the aggregate amount of $89,377.12, as set forth in a list of tax abatements submitted by the Board of Assessors of Taxes which was affixed to and made a part of the resolution. Immediately upon adjournment of this meeting the plaintiff Kelly asked the defendant, Donovan, who was the City Clerk and as such the Clerk of the Board of Aldermen, for permission to see the resolution with its appendant list of abatements. Donovan told Kelly to see him "tomorrow." Repeatedly during the following weeks reporters for the Providence Journal Company, and other officers and agents of that corporation, made requests, at first orally and later in writing, of various Pawtucket officials for permission to see the list of tax abatements, but in every instance the request met with postponement, evasion or rebuff.

Affairs remaining in this state of deadlock, Mayor McCoy on January 21, 1948, at a regular meeting of the Board of Aldermen, announced the release of the 1947 tax abatement list to the Pawtucket Times, a daily newspaper published in the city of Pawtucket which is a competitor in that city of the Providence Journal. And then at the same meeting the Board of Aldermen passed an ordinance providing in pertinent part that "No city officer, official, agent or employee shall permit any person to examine any tax abatement record or any copy thereof, nor shall any such officer, official, agent or employee disclose the contents of any such record to any person, unless such person has permission of the City Council to examine such record." This ordinance was passed by the Common Council two days later and the Mayor immediately approved it.

None of the plaintiffs, and no one else on behalf of the Providence Journal Company, either then or subsequently, applied to the City Council for permission to see the tax abatement record pursuant to this ordinance. Instead on February 7, 1948, mandamus proceedings on the relation of the plaintiffs herein were instituted in the Superior Court of Rhode Island to compel Mayor McCoy, Treasurer and Tax Collector McAloon, and some of the other defendants, to make the tax abatement record available to the plaintiffs for publication. Thereupon Mayor McCoy immediately called a special session of the City Council for February 9, at which he read the following communication dated February 7, from himself to the Board of Aldermen:

"Gentlemen:

"It has come to my attention that certain attorneys and individuals engaged in the examination of titles find it necessary to examine tax abatement records of the City of Pawtucket. It is also obvious that any member of the public who has proper interest in such records should be permitted to see the same. Clearly, such persons should not be required to seek special permission each time the necessity for the examination of such records arises.

"In addition, it has come to my attention that The Pawtucket Times, a newspaper published in the City of Pawtucket, is desirous of examining these records for the purpose of publication in whole or in part as a public service.

"Accordingly, I have called your Honorable Body to meet in special session at this time (Monday, February 9, 1948 at five o'clock P.M.) to act upon resolutions pertaining to these matters.

Respectfully Ambrose P. McCoy Mayor."

Obviously in response to this letter, the City Council immediately passed two joint resolutions which were approved by the mayor on the same day. In one of these it was resolved first that permission be granted "to any person himself or through his agent, engaged in the examination of titles or work of similar nature, to examine tax abatement records pertaining to such titles; Permission is also granted to any person having an interest in such records which is such as would enable him to maintain or defend an action for which such records can furnish evidence or necessary information, whether such interest is private, capable of sustaining a suit or a defense in his own personal behalf; or capable of sustaining a suit or a defense as the representative of the common or public right;" and second it was further resolved, "that no person shall be permitted to examine such records for publication without the express permission of the city council." In the other it was resolved that permission be granted "to any duly authorized representative of The Pawtucket Times, a newspaper published in the City of Pawtucket, to examine and copy all tax abatement records for publication in whole or in part."

On these conceded facts no broad, general issue of freedom of the press is presented, for the defendants, acting in their respective official capacities, have not barred the press at large from access to the tax abatement records of the city of Pawtucket. They have given access to those records to the Pawtucket Times, but denied like access to its competitor the Providence Journal. To be sure, the denial is not direct and categorical, but it is none the less effective. Postponement, evasion and rebuff by the city officials are as effective as outright refusal, and application by the Providence Journal, or its officers or agents, to the City Council pursuant to local legislation for permission to see the records would clearly accomplish nothing, for the District Court found on such abundant evidence as to make challenge futile that the discrimination practiced by the defendants against the Providence Journal was "wilful," "purposeful," "arbitrary," and "capricious," and that the only reasonable conclusion to be drawn from the record as a whole was that the enactments of the City Council were but "the crowning achievement" of the discrimination which it had found to exist.

Thus the substance of the plaintiffs' case, omitting their contention with respect to freedom of the press which in our view it is not necessary to consider, is that they have the right under the law of Rhode Island to inspect and to publicize the fiscal records of the city of Pawtucket, and that the officials of that city, at first without statutory authority but later under color of city ordinances, have denied them that right while conferring it upon others whose circumstances were similar to their own.

We are confronted, therefore, with an issue of equal protection of the laws, and in keeping with accepted judicial practice we shall confine ourselves to that issue, passing the broader issue of freedom of the press, for in our opinion the case can be disposed of on the narrower issue.

This brings us to the question of jurisdiction.

In the complaint in the instant case, which was filed on August 19, 1948, federal jurisdiction of the controversy is alleged to rest upon § 24(1), (12), and (14), of the Judicial Code, as amended, 28 U.S.C. (1946 ed.) § 41(1), (12), and (14), now Title 28 U.S.C. §§ 1331, 1343. We think that federal jurisdiction of this controversy is conferred by § 1343, supra, and therefore see no occasion to inquire whether federal jurisdiction might also rest upon other statutory...

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