State v. Coleman

• Decision Date: 27 April 1921
• Court: Connecticut Supreme Court
• Parties: STATE v. COLEMAN.

113 A. 385

96 Conn. 190

STATE v. COLEMAN.

Supreme Court of Errors of Connecticut.

April 27, 1921

Appeal from Criminal Court of Common Pleas, New Haven County Earnest C. Simpson, Judge.

Information by the State of Connecticut against McAllister Coleman. From a sentence and judgment against defendant, defendant appeals. Judgment set aside and cause remanded, with direction to sustain demurrer to information and enter judgment for defendant.

The information charged the defendant with using a certain public square in the city of Meriden for the purpose of delivering an oration and making a speech without first obtaining a permit from the chief of police, contrary to an ordinance of the city of Meriden. The information was brought to and tried before the court of common pleas in New Haven county. A demurrer to the information was overruled, the defendant refused to plead over, and was found guilty and sentenced to pay a fine of $25 and costs.

Gager and Burpee, JJ., dissenting.

Albert De Silver, of New York City, and Harry L. Edlin, of New Haven, for appellant.

Edwin S. Pickett, Pros. Atty., of New Haven, for the State.

BEACH J.

The charter of the city of Meriden empowers the court of common council to make and enforce ordinances to keep open and safe for public use and travel, and free from encroachment or obstruction, the streets, highways, public grounds, and public places in the city, to prohibit or regulate shows, parades, rendezvous, and assemblies in streets and public places, to keep the streets and all public places quiet from undue noise, and to impose fines not exceeding $100 for violation of such ordinances. In the exercise of these powers the common council enacted the following ordinance:

" Resolved, that no person or persons shall use the streets, sidewalks, parks, or public squares for the purposes of delivering orations or making speeches or any other public demonstrations without first obtaining a permit from the chief of police. Any person or corporation violating this ordinance shall, upon conviction thereof, be fined not more than $100."

The question raised by the defendant's appeal from the ruling of the court overruling the demurrer to the information, and from the sentence and judgment of the court, is whether this ordinance is violative of the Constitution of the state of Connecticut and of the United States.

Our Constitution is a grant and not a limitation of power. Bridgeport Public Library v. Burrough's Home, 85 Conn. 309, 319, 82 A. 582. It is certain that no powers were granted to the General Assembly, and that none can be delegated by it to a municipality, which are inconsistent with the reservation of personal liberties contained in article 1. The broad grant of the legislative power of the state to the General Assembly, in article 3 is unqualified and is not otherwise restrained than by article 1. It includes the police power, but that phrase does not denote any " peculiar and transcendent form of legislative authority." The police powers of a state " ‘ are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions.’ *** If they are exercised by legislation which violates any right guaranteed by the national or state Constitution, they are so far forth invalid." McKeon v. Railroad Co., 75 Conn. 343, 347, 53 A. 656, 657 (61 L.R.A. 736), citing the License Cases, 5 How. 504, 583, 12 L.Ed. 256; Leisy v. Hardin, 135 U.S. 100, 108, 10 Sup.Ct. 681, 34 L.Ed. 128; State v. Conlon, 65 Conn 478, 33 A. 519, 31 L.R.A. 55, 48 Am.St.Rep. 227. See, also, State v. Porter, 94 Conn. 639, 110 A. 59, and cases cited.

The appellant's contention is that the Meriden ordinance is violative of sections 1 and 5 of our Bill of Rights, which guarantee equality in rights and freedom of speech, and also of the Fourteenth Amendment to the federal Constitution.

It does not appear whether the appellant has been deprived of the right of free speech or not. He has been fined for making a speech in a public park without a permit, but it does not follow that his speech was delivered at such a time or place that he had a constitutional right to deliver it. The ordinance purports to regulate the use of streets and parks, and it does not absolutely forbid but by implication recognizes same qualified right, or at least some qualified privilege, of public speaking at some time and under some restrictions in the streets and parks of Meriden. Such an ordinance is not necessarily violative of section 5 of the Bill of Rights; and, if it is, it can only be so because it attempts to confer on the chief of police the right to arbitrarily determine in advance who may exercise that qualified privilege, or what subjects may be publicly discussed, or what sentiments publicly expressed on the streets and in the parks of Meriden.

This latter objection is based on section 1 of the Bill of Rights. If the qualified right or privilege of public speaking which the ordinance recognizes is one which all citizens have an equal right to exercise, and if the true construction and effect of the ordinance be such as to confer on the chief of police a personal and arbitrary power to determine who may and who may not exercise it, then the ordinance is void, and its prohibition cannot be lawfully enforced by fine. State v. Conlon, 65 Conn. 478, 33 A. 519, 31 L.R.A. 55, 48 Am.St.Rep. 227; State v. Porter, 94 Conn. 639, 110 A. 59; Ingham v. Brooks, 95 Conn. 317, 111 A. 209.

We take these two questions in order. The public right in streets and parks is paramount, and it is therefore admitted that in the exercise of its delegated authority the city of Meriden may make reasonable ordinances to keep the streets and parks open and safe for public travel and free from encroachment or obstruction. Whether it might have unqualifiedly forbidden the delivery of any oration or the making of any speeches in such places we need not inquire, for it has not attempted to do so. A qualified right or privilege of public speaking after obtaining a permit is recognized, and the particular question is whether that residuum of right or privilege is of such a character that all citizens have a constitutional right to enjoy it upon equal terms. Section 5 of the Bill of Rights answers that question by declaring that-

" Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."

It is assumed by the ordinance that some citizens will be permitted by the chief of police to use the streets and parks of Meriden for the purpose of exercising their constitutional right. That being so, it is certain that the chief of police may not, by any arbitrary process of selection, determine in advance who may and who may not exercise it. If the permit is to be granted in some instances and withheld in others, it must be in accordance with some uniform rule which is not expressed in the ordinance.

Turning, now, to the construction of the ordinance, to see whether such a uniform rule can be read into it, we find the ordinance hopelessly indefinite. It does not even expressly confer on the chief of police the power to issue permits. It simply assumes that he has the power to grant or refuse them. No rule is laid down to guide or restrain that power, or to inform applicants on what terms a permit will be granted.

In Lieberman, People ex rel., v. Van de Carr, 175 N.Y. 440, 67 N.E. 913, a section of the Sanitary Code of New York (section 66) forbidding the sale of milk in New York City without a permit from the board of health, was upheld by reading into it the presumption that a public officer will exercise his powers impartially and according to law; and this decision was approved by the Supreme Court in Lieberman v. Van de Carr, 199 U.S. 552, 26 Sup.Ct. 144, 50 L.Ed. 305. Assuming this to be the law of the Supreme Court, this ordinance does not violate the Fourteenth Amendment of the federal Constitution.

But in determining whether it violates the Constitution of Connecticut, we must be guided by our own public policy and our own precedents. So guided, we can reach but one conclusion. In the first place, the presumption that a public officer will discharge his duties according to law assumes that the law tells him what his duties are. This ordinance does not do so. It must be supposed that a subordinate officer desirous of obeying the law will look to his written instructions for guidance, and, if the...