State v. Cox

Decision Date20 June 1940
Docket NumberNo. 3166.,3166.
Citation16 A.2d 508
PartiesSTATE v. COX, and four other cases.
CourtNew Hampshire Supreme Court

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Exceptions from Superior Court, Hillsborough County; Young, Judge.

Willis Cox, Walter Chaplinsky, John Konides, Arvid E. Moody, and Oliva Paquette were convicted of taking part in a parade or procession on public streets in the City of Manchester without license, and they bring exceptions.

Exceptions overruled.

See also 61 S.Ct. 143, 85 L.Ed.——.

Complaints, for taking part in a parade or procession on public streets in the City of Manchester without license therefor as required by Statute (P.L. c. 145, § 2), the violation of which is made a misdemeanor (Ib. § 5). The defendants were first found guilty by the Municipal Court of Manchester, and again, on appeal, by a jury in the Superior Court.

The defendants are believers in a form of Christianity they regard as opposed to religion. They are connected with a directing organization and call themselves Jehovah's Witnesses and ordained ministers to preach the Gospel according to their views of Christianity.

On Saturday, July 8, 1939, early in the evening they met with 83 others at a hall in Manchester for the purpose of engaging in a demonstration called by them an "information march". They divided into groups of from 15 to 20 persons, each group proceeding to an assigned part of the business district of the city, and thence in single-file formation and "as close together as it was possible for them to get without interfering with each other's walking" marched on the sidewalks of certain streets, some carrying placards or signs. The defendants carried signs fastened to a short staff and bearing the sentence, "Religion is a Snare and a Racket" on one side, and on the other an exhortation, "Serve God and Christ the King." Leaflets were also distributed by them while marching.

Manchester had a population of over 75,000 in 1930, and there was testimony that on Saturday nights in an hour's time 26,000 persons passed one of the intersections where the defendants marched. The marchers interfered with the normal sidewalk travel, but no technical breach of the peace occurred.

The march was a prearranged affair, and no permit for it was sought, although the defendants understood that under the statute one was required.

Their bill of exceptions was allowed. It presents as legal issues the construction of the statute and its validity under the state and federal constitutions.

Transferred by Young, J.

Thomas P. Cheney, Atty. Gen., Frank R. Kenison, Asst. Atty. Gen., and J. Vincent Broderick, Co. Sol., of Manchester, for the State.

Charles D. Barnard and Charles H. Barnard, both of Manchester, and Joseph F. Rutherford and Hayden Covington, both of Brooklyn, N. Y., for defendants.

ALLEN, Chief Justice.

The statute (P.L. c. 145, § 2) upon which the defendants were found guilty is this: "No theatrical or dramatic representation shall be performed or exhibited, and no parade or procession upon any public street or way, and no open-air public meeting upon any ground abutting thereon, shall be permitted, unless a special license therefor shall first be obtained from the selectmen of the town, or from a licensing committee for cities hereinafter provided for."

A succeeding section (3) provides that a city may create a licensing board to be appointed by the city government, to "have delegated powers to investigate and decide the question of granting licenses" and to "grant revocable blanket licenses to fraternal and other like organizations, to theatres and to undertakers". Another section (4) requires all special licenses to be in writing and to "specify the day and hour of the permit to perform or exhibit, or of such parade, procession or open-air public meeting", and establishes a range of fees from a nominal amount to $300. The section ensuing (5) prescribes the penalty for violation of the statute.

The contention that the defendants were not guilty under the terms of the statute has no merit. As the complaints charged, they "participated in a certain parade or procession". A succession of persons substantial in number walked in formal march with signs and placards. This was a parade or procession, such as is required by the statute to be licensed. It was a march in formation, and its advertising and informatory purpose did not make it otherwise. Its single-file order did not destroy its character as a procession, nor did its purpose to publish information take it out of the purview of the statute. Each group was an organized unit under leadership and direction. It is immaterial that its tactics were few and simple. It is enough that it proceeded in ordered and close file as a collective body of persons on the city streets. Whether it could be called an assembly, being in motion rather than stationary, is also immaterial. If it might be, it remained a parade or procession as. the statute employs the words. Clearly the defendants took part in a parade or procession without a license therefor.

The issue whether the act which the defendants violated is void under the state constitution may be readily and briefly stated. The state bill of rights (Const., Pt. I, Art. 22) has this provision: "The liberty of the press is essential to the security of freedom in a state: It ought, therefore, to be inviolably preserved". The right to worship God in any manner is also held to be inalienable, provided the public peace, or others in their religious worship, are not disturbed. Ib. Pt. I, Art. 5. Whether these articles serve to render the act a nullity, or at least inapplicable to the facts of the case, is to be determined. Decision turns upon the force and effect of another article of the bill of rights (31) reading as follows: "The legislature shall assemble for the redress of public grievances, and for making such laws as the public good may require". Another provision of the constitution (Const., Pt. II, Art. 5) confirms the grant of power to the legislature by vesting it with "full power and authority * * * to * * * ordain * * * all manner of wholesome and reasonable * * * laws, * * * directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, * * *". The defendants contend that the legislature has overstepped itself in enacting the law as an exercise of the protective power.

While highways are public, they are subject to public control. The public have no vested rights to their use, and it follows that the use is such as the state permits, and that any conditions of permission are proper, provided they are not forbidden by the constitution.

"* * * the operation of an automobile upon the public highways is not a right, but only a privilege which the state may grant or withhold at pleasure (Com. v. Kingsbury, 199 Mass. 542, 85 N.E. 848, L.R.A.1915E, 264, 127 Am.St.Rep. 513), and that what the state may withhold it may grant upon condition." State v. Sterrin, 78 N.H. 220, 222, 98 A. 482, 483, cited in Re Opinion of the Justices, 81 N.H. 566, 567, 568, 129 A. 117, 39 A.L.R. 1023. "Classification between those who may and who may not have the privilege of highway use of motor vehicles must be reasonable, but the privilege itself need not be." Rosenblum v. Griffin, 89 N.H. 314, 319, 197 A. 701, 705, 115 A.L.R. 1367.

The use is for travel, and the travel includes its incidents. The highway "easement is bought by the public when it is reasonably necessary for the public accommodation. The right, when bought, is the right of reasonably using the land as a way." Varney v. Manchester, 58 N.H. 430, 432, 40 Am.Rep. 592. "Travelers upon public highways have the right to do all acts reasonably incident to 'a viatic use of the way.'" Lydston v. Rockingham, etc., Company, 75 N.H. 23, 70 A. 385, 386, 21 Ann.Cas. 1236.

While travel may be with any end in view, a highway itself may be used only for the travel. The state may provide measures to prevent its use for other purposes, and to secure its use for travel only. It may regulate travel, and, since the right to travel is a privilege, may forbid any particular form of travel, or may permit it under such terms as it may impose, within constitutional bounds. The state is in the position of a landowner in control of the use of a highway, except that discrimination must be fair and that no essential rights be impaired. At its will it may shut off a highway from use and it may limit the travel uses to certain forms of use. "The state has authority to make regulations as to the time, mode, and circumstances under which parties shall assert, enjoy, or exercise their rights [of highway use], without coming in conflict with any of those constitutional principles which are established for the protection of private rights and private property." State v. White, 64 N.H. 48, 50, 5 A. 828, 830, in which case a statute forbidding drum beating in the compact part of a town was held valid and applicable to the defendants who beat a drum "in accordance with their sense of religious duty, and in so doing were worshipping God according to the dictates of their own consciences", and without "disturbing the public peace, or the religious worship of others". "A reasonable measure of prevention to avoid disturbance is not an infringement of constitutional rights." 64 N.H. page 50, 5 A. page 830. The permission of highway use must not be upon a condition restricting or abridging freedom of speech or writing, but impositions of conditions respecting the freedom are valid if they reasonably serve to prevent any substantial disturbance which is an interference of normal travel.

Undoubtedly the right to travel imparts the right of communication from one while a traveler...

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