Commonwealth v. KimballCommonwealth v. Kimball
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- Lummus
This is a complaint to a district court, charging that the defendant “did distribute hand bills in a public street, she . . . not then and there having a permit to do so.” She renewed in the Superior Court on appeal a motion made in the District Court to quash the complaint for the reason that “the offense charged against the defendant is unknown to law.” The only point argued upon the motion is that the complaint did not set forth the ordinance, and allege that the act charged was contrary thereto. An ordinance of the city of Fall River, the Commonwealth admits, is the sole foundation of the complaint.
Originally a complaint for violation of an ordinance recited the ordinance. After statutes had dispensed with this requirement for certain courts (Commonwealth v. Worcester, 3 Pick. 462, 473, 474), it was abolished generally by St. 1846, c. 62. See now
The fact that it is no longer necessary to refer in a com*355plaint to an ordinance upon which it is based, may seem anomalous when we consider that the defendant may be left in doubt as to whether he is being prosecuted at common law (Commonwealth v. Springfield, 7 Mass. 9, 13; Commonwealth v. Hoxey, 16 Mass. 385), or under a supposed statute (Commonwealth v. Freelove, 150 Mass. 66, 67; Commonwealth v. Andler, 247 Mass. 580; Commonwealth v. Cooper, 264 Mass. 378;
Coming to the merits, an ordinance of Fall River, adopted in 1930, provided as follows: “No person shall distribute posters, bills nor sheets of paper of any description, containing advertising matter of any kind, whether printed or written, in any public street, highway, or public place; nor shall cause the same to be done by another.” What the defendant did distribute in a public street in Fall River consisted of four pieces of paper apparently fastened together at the top, each printed or prepared by some means *356of making many copies at one time, advocating a certain labor organization, the whole being entitled “Garment Worker” and signed “International Ladies Garment Workers’ Union Locals 178, 232, 233 304 South Main St., Fall River Massachusetts.” On one of the sheets is the following: “Sit-down! Exciting new play based on the auto strikes given by the Brookwood Players Anawan Hall Wed. Ap. 7 8:00 pm. Tickets may be obtained free at the office of the Union.” We think that these pieces of paper could be found to be “hand bills” within the language of the complaint, and “bills” and “sheets of paper” containing “advertising matter” within the language of the ordinance. The word advertising is not limited to notices for commercial purposes.
The Legislature may delegate to local authorities the power to make local police regulations. Brodbine v. Revere, 182 Mass. 598, 600. Commonwealth v. Fox, 218 Mass. 498. Opinion of the Justices, 286 Mass. 611, 617-619. “An ordinance which goes beyond the authority conferred by the enabling statute is invalid.” Cawley v. Northern Waste Co. 239 Mass. 540, 544. No statute specifically gives power , to the city of Fall River or to cities generally to regulate the distribution of handbills on the streets. But the present Plan D charter of Fall River (
The main attack of the defendant is upon an amendment to the ordinance, made before the commission of the alleged offence, by adding at the end of the ordinance as herein-before quoted the words: “provided, however, that this section shall not prohibit the distribution of written or printed notices of a meeting of any recognized organization of citizens if the contents of said notices are approved by the Mayor or such other official delegated by him to act thereon.” The general prohibition remains. The amendment creates an exception narrow in scope, where the distribution is (1) of notices of a meeting (2) of an organization (3) of citizens (4) which is recognized and (5) the contents of the notices are approved by the mayor or his delegate. In a manufacturing city like Fall River there may well be organizations the members of which could most speedily and conveniently be notified of meetings by handbills distributed on the street at the entrances to mills. Such members would probably welcome and retain the notices, and not drop them on the streets. A rational ground exists for such an exception to a general prohibition. The limitation of the exception to organizations of *359citizens as distinguished from aliens cannot be pronounced unconstitutional or unreasonable. Commonwealth v. Hana, 195 Mass. 262, 265, 266. Lee v. Lynn, 223 Mass. 109, 112. Ohio v. Deckebach, 274 U. S. 392. State v. Rheaume, 80 N. H. 319. In re Rameriz, 193 Cal. 633. Gizzarelli v. Presbrey, 44 R. I. 333. Morin v. Nunan, 91 N. J. L. 506. Asakura v. Seattle, 122 Wash. 81. As used in the amendment, the word recognized, though not well chosen, means no more than actual and publicly known, as contrasted with proposed, pretended or secret. The sufficient reason for requiring the contents of the notices to be approved by some public officer before being distributed is to make sure that they do not go beyond the scope of the exception. The duty of the public officer is to approve or disapprove according to his honest judgment upon that subject, and not to use his authority arbitrarily, capriciously, or in a spirit of favoritism. Commonwealth v. McGann, 213 Mass. 213, 215. General Outdoor Advertising Co. Inc. v. Department of Public Works, 289 Mass. 149, 192.
Ordinarily a general prohibition may be qualified by an exception permitting the act when licensed or permitted by a public officer. Lowell v. Simpson, 10 Allen, 88. Commonwealth v. Plaisted, 148 Mass. 375, 382. Quincy v. Kennard, 151 Mass. 563. Commonwealth v. Parks, 155 Mass. 531, 532. Commonwealth v. Ellis, 158 Mass. 555, 557. Commonwealth v. Davis, 162 Mass. 510, 512. Opinion of the Justices, 208 Mass. 625, 629, 630. Storer v. Downey, 215 Mass. 273. Commonwealth v. Fox, 218 Mass. 498. Commonwealth v. Slocum, 230 Mass. 180, 190. Richards v. Pass, 277 Mass. 372, 376. Commonwealth v. Haffer, 279 Mass. 73. McMurdo v. Getter, 298 Mass. 363, 367. The case does not fall within Commonwealth v. Atlas, 244 Mass. 78, 82, and Anzalone v. Metropolitan District Commission, 257 Mass. 32, 37, and cases therein cited, in which local regulations purported to make the right to use and improve private property dependent on the unguided discretion of a public officer. In Commonwealth v. Maletsky, 203 Mass. 241, 246, 247, one of such cases, cases like the present one *360were distinguished as cases “where the city government has general control of the subject matter of the ordinance and may impose such conditions as it pleases.”
The short answer, however, to the defendant’s main contention, is that her case does not fall within the exception, for she was not distributing a notice of a meeting; and even if the amendment were invalid in whole or in part, an intention could not properly be imputed to the city council to make the whole regulation of the distribution of handbills dependent upon the validity of the unimportant exception made by the amendment. At the most, if the amendment should be held invalid, it would be excised, leaving the preexisting general prohibition in force. Commonwealth v. Petranich, 183 Mass. 217, 220. Edwards v. Bruorton, 184 Mass. 529. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 81. Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, 32. Worcester County National Bank, petitioner, 263 Mass. 444, 460, 461. Opinion of the Justices, 269 Mass. 611, 615, 616. Thomson Electric Welding Co. v. Commonwealth, 275 Mass. 426, 428. Dorchy v. Kansas, 264 U. S. 286. Compare Commonwealth v. Hana, 195 Mass. 262, 267; Greene v. Mayor of Fitchburg, 219 Mass. 121, 127.
Exceptions overruled.