Poulos v. State of New Hampshire

Decision Date27 April 1953
Docket NumberNo. 341,341
Citation97 L.Ed. 1105,73 S.Ct. 760,345 U.S. 395,30 A.L.R.2d 987
CourtU.S. Supreme Court

See 345 U.S. 978, 73 S.Ct. 1119.

[Syllabus from pages 395-396 intentionally omitted] Mr. Hayden C. Covington, Brooklyn, N.Y., for appellant.

Mr. Gordon M. Tiffany, Concord, N.H., for appellee.

Mr. Justice REED delivered the opinion of the Court.

This appeal presents the validity of a conviction of appellant for conducting religious services in a public park of Portsmouth, New Hampshire, without a required license, when proper application for the license had been arbitrarily and unreasonably refused by the City Council. The conclusion depends upon consideration of the prin- ciples of the First Amendment secured against state abridgment by the Fourteenth.1

Appellant is one of Jehovah's Witnesses. Permission for appellant and another witness, now deceased, was sought to conduct services in Goodwin Park on June 25 and July 2. They offered to pay all proper fees and charges, and complied with the procedural requirements for obtaining permission to use the park. When the license was refused on May 4, appellant nevertheless held the planned services and continued them until arrested. He was charged with violation of § 22 of the city ordinance set out below.2 On conviction in the Municipal Court he was fined $20 and took an appeal which entitled him to a plenary trial before the Superior Court. Before that trial appellant moved to dismiss the complaints on the ground that 'the ordinance as applied was unconstitutional and void.' This motion on the constitutional question, pursuant to New Hampshire practice, was transferred to the Supreme Court. It ruled, as it had on a former prosecution under a different clause of an identical section, so far as pertinent, of a New Hampshire statute, against one Cox. State v. Cox, 91 N.H. 137, 143, 16 A.2d 508, that:

'The discretion thus vested in the authority (city council) is limited in its exercise by the bounds of reason, in uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways, is the statutory mandate. The licensing authority has no delegation of power in excess of that which the legislature granting the power has, and the legislature attempted to delegate no power it did not possess.' State v. Derrickson, 97 N.H. 91, 92, 81 A.2d 312, 313.

In Cox v. State of New Hampshire, 312 U.S. 569, at page 572, 61 S.Ct. 762, at page 765, 85 L.Ed. 1049, we affirmed on appeal from the New Hampshire conviction of Cox, acknowledging the usefulness of the state court's carefully phrased interpretive limitation on the licensing authority. The Supreme Court of New Hampshire went on to hold the challenged clause in this present prosecution valid also in these words:

'The issue which this case presents is whether the city of Portsmouth can prohibit religious and church meetings in Goodwin Park on Sundays under a licensing system which treats all religious groups in the same manner. Whether a city could prohibit religious meetings in all of its parks is a doubtful question which we need not decide in this case. What we do decide is that a city may take one of its small parks and devote it to public and nonreligious purposes under a system which is administered fairly and without bias or discrimination.'

Thereupon it discharged the case.

The result of this action was to open the case now here in the Superior Court for trial. At the conclusion of the evidence, appellant raised federal issues by a motion to dismiss the complaint set out below.3 The Superior Court passed upon the issues raised. It held that Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, determined the validity of the section of the ordinance under attack; that the refusal of the licenses by the City Council was arbitrary and unreasonable, but refused to dismiss the prosecution on that ground because:

'The respondents could have raised the question of their right to licenses to speak in Goodwin Park by proper civil proceedings in this Court, but they chose to deliberately violate the ordinance.'

On appeal, the Supreme Court of New Hampshire affirmed.4 It held the ordinance valid on its face under Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. While the Cox case involved the clause of the ordinance, § 22 relating to 'parade or procession upon any public street or way,' the New Hampshire Supreme Court thought the present prosecution was 'under a valid ordinance which requires a license before open air public meetings may be held.' This was the first ruling on the public speech clause. Cf. State v. Cox, 91 N.H. at page 143, 16 A.2d 508; Cox v. State of New Hampshire, 312 U.S. at page 573, 61 S.Ct. at page 764, 85 L.Ed. 1049. As the ordinance was valid on its face the state court determined the remedy was by certiorari to review the unlawful refusal of the Council to grant the license, not by holding public religious services in the park without a license, and then defending because the refusal of the license was arbitrary.

Appellant's challenge on federal grounds to the action and conclusion of the New Hampshire courts is difficult to epitomize. By paragraph 3 of his motion to dismiss, note 3, supra, appellant relied on the principles of the First Amendment for protection against the city ordinance. In his statement of jurisdiction, the question presented, No. I, the illegal denial of his application for a license, was urged as a denial of First Amendment principles. 5 In his brief, he phrases the issue differently as indicated below.6 We conclude that appellant's contentions are, first, no license for conducting religious ceremonies in Goodwin Park may be required because such a requirement would abridge the freedom of speech and religion guaranteed by the Fourteenth Amendment; second, even though a license may be required, the arbitrary refusal of such a license by the Council, resulting in delay, if appellant must, as New Hampshire decided, pursue judicial remedies, was unconstitutional, as an abridgment of free speech and a prohibition of the free exercise of religion. The abridgment would be because of delay through judicial proceedings to obtain the right of speech and to carry out religious exercises. The due process question raised by appellant as a part of the latter constitutional contention disappears by our holding, as indicated later in this opinion, that the challenged clause of the ordinance and New Hampshire's requirement for following a judicial remedy for the arbitrary refusal are valid. This analysis showing an attack on the ordinance as applied as repugnant to the principles of the First Amendment and a determination of its validity by the New Hampshire Supreme Court requires us to take jurisdiction by appeal.7 The state ground for affirmance, i.e., the failure to take certiorari from the action refusing a license, depends upon the constitutionality of the ordinance.

First. We consider the constitutionality of the requirement that a license from the city must be obtained before conducting religious exercises in Goodwin Park. Our conclusion takes into consideration the interpretive limitation repeated from Cox v. New Hampshire, quoted at p. 2 of this opinion (73 S.Ct. 763). This state interpretation is as though written into the ordinance itself. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840. It requires uniform, nondiscriminatory and consistent administration of the granting of licenses for public meetings on public streets or ways or such a park as Goodwin Park, abutting thereon.8 The two opinions of the Supreme Court of New Hampshire do not state in precise words that reasonable opportunities for public religious or other meetings on public property must be granted under this ordinance to such religious organizations as Jehovah's Witnesses. In the former appeal of this controversy in the Derrickson case, supra, New Hampshire decided that the city could exclude, without discrimination, all religious meetings from Goodwin Park if it so desired, leaving that one park, among several, there being no showing of its unique advantages for religious meetings, as a retreat for quietness, contemplation or other nonreligious activities. The Supreme Court refused to determine whether religious meetings could be excluded from all parks at all times. That has not been decided in this appeal. Informed witnesses at this trial without contradiction testified that no public religious services were ever licensed in any Portsmouth park. There was no allocation of parks between religious and nonreligious meetings. The Superior Court held the refusal of this license arbitrary and unreasonable. Obviously the license required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.9 While there was no assertion of the invalidity of the ordinance on its face, the Supreme Court determined the validity of the ordinance as applied. See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 287, 42 S.Ct. 106, 107, 66 L.Ed. 239; Charleston Federal Sav. & Loan Ass'n v. Alderson, 324 U.S. 182, 185—186, 65 S.Ct. 624, 627, 89 L.Ed. 857.10 We can only conclude from these decisions that the Supreme Court of New Hampshire has held that the ordinance is valid and, as now written, made it obligatory upon Ports-mouth to grant a license for these religious services in Goodwin Park. The appellant's contention that the Council's application of the ordinance so as to bar all religious...

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