State v. Derrickson

• Decision Date: 05 June 1951
• Docket Number: No. 4042,4042
• Citation: 97 N.H. 91,81 A.2d 312
• Parties: STATE v. DERRICKSON. STATE v. POULOS.
• Court: New Hampshire Supreme Court

Page 312

81 A.2d 312

97 N.H. 91

STATE v. DERRICKSON.

STATE v. POULOS.

No. 4042.

Supreme Court of New Hampshire.

June 5, 1951.

Gordon M. Tiffany, Atty. Gen., Glenn Davis, Law Asst., Concord, and Arthur J. Reinhart, City Sol., Portsmouth, for the State.

Hayden C. Covington, Brooklyn, N. Y., and Henry M. Fuller, Portsmouth, for defendants.

KENISON, Justice.

The Bill of Rights of the Constitution of New Hampshire does not guarantee to every individual or to every group of individuals absolute liberty. 'When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.' N. H. Const. Part First, Art. 3rd. The rights of freedom of assembly, speech and worship are accorded a high place in and are specifically guaranteed by the New Hampshire Constitution and statutes implementing it. While these freedoms cannot be prohibited, they may be subjected to reasonable and nondiscriminatory regulation in order that the constitutional rights of others may be equally protected in the interest of public order and convenience.

The ordinance drawn in question in this case is copied from the statute which was construed as valid in State v. Cox, 91 N.H. 137, 16 A.2d 508, and affirmed by a unanimous court in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. The construction placed on the statute in that case, R.L. c. 174, §§ 2, 4, is the construction that must be given to sections 22 and 24 of the ordinance. '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. Cox, supra, 91 N.H. 143, 16 A.2d 513.

The defendants dismiss the applicability of this case briefly in the following manner: 'The Cox case is distinguishable here because in this case the respondents have attempted to comply with the ordinance and offered to pay the necessary fee and expenses.' It is doubtful that it makes any critical constitutional difference as to the validity of an ordinance or statute that there was no compliance in one case or attempted compliance in the other. However, we do not pause to examine this contention with any more detail than was advanced in its behalf since the defendants have chosen to place their chief reliance on the recent case of Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, which will be hereinafter discussed.

We do not know the number of parks, public commons, public squares and other public grounds in the city of Portsmouth, although it is a matter of public knowledge that Goodwin Park is not the only one in the city, Sherburne v. Portsmouth, 72 N.H. 539, 58 A. 38, and that it is a small park. There is nothing to indicate that it has been used for religious meetings or sectarian purposes since it was donated to and dedicated by the city more than a half century ago. See Portsmouth City Reports 1887, page 12; Annual Report City of Portsmouth 1888, page 13; Gurney, Portsmouth Historic and Picturesque 1902, page 64. It cannot be argued that this is a recent discrimination against Jehovah's witness since the denial of the park for religious and sectarian meetings is consistent with a definite and systematic policy which treats the Jew, the Catholic, the Protestant and the Jehovah's witness alike.

If the city of Portsmouth wishes to use one of its small parks for other public purposes and to prohibit its use for religious and sectarian meetings in a nondiscriminatory way, constitutional rights are not abridged if there are still adequate places of assembly for those who wish to hold public open air church meetings. If the right to hold a church meeting on public property is to be given a preferred position, it does not necessarily follow that that right can be exercised in every park at any time that a certain group desires to do so. The privilege of people to seek peace and sanctuary in a public park, the privilege to be let alone and the privilege not to be subject to oral aggression of a religious nature on Sunday are entitled to some consideration. If they are allowed to abridge or unreasonably impair the freedoms of free speech, assembly and worship they are unconstitutional. If such privileges are provided for in a systematic and nondiscriminatory way so that the freedoms of speech, assembly and worship can be adequately exercised within a city the Constitution is no bar to their enforcement.

In the present case we have an ordinance which the defendants have conceded to be valid on its face. The ordinance has been construed by this court and the Supreme Court of the United States in such a way that no discriminatory or...