*1 228 Wharton, 82 Colo.
The cases of Montrose v. County 466, county 261 title to a 4, Pac. wherein it held that was office could not in a to recover brought be tried suit Cummings, and Civil Commission v. 83 Service salary, an 379, Colo. 265 decided that 687, Pac. which it was certiorari, action in and not mandamus one the ministerial function of proper remedy enforcing service, in the classified cited reinstating employee action, relator the form of his are with- justifying Londoner, ex rel. v. out 13 People here. pertinency rel., 22 v. ex 303, 764, Colo. Pac. Kepley People 804, Colo. 230 Pac. wherein it was held that quo warranto laid title properly try respectively office of mayor Denver and director an irrigation district, than in the here differently situation where Civil Service has the of selection and power Commission certification, the court had complete jurisdiction finally adjudicate the titles offices therein ques- tioned. judgment affirmed.
Mr. Justice Jackson, who was not a member of the court at the time of oral argument, does not participate herein. 15,040.
No. City
Hamilton of Montrose. v. (124 757) [2d] P. Rehearing April 1942. Decided March 1942. denied *2 in error. for plaintiff Mr. L. C. Kinikin, error. in L. for defendant Mr. Strang, Herbert En Banc. opinion of delivered
Mr. Justice Jackson court. in- for our consideration
The cause here presented In the ordinance. city of a volves violation alleged of Mont- City of the filed in the court police complaint day the 31st “That on or about rose, it is charged: vio- A.D. Hamilton [plaintiff David May, error] en- No. 190 of Ordinance lated Article 177 Section 12th Quiet on the city passed titled: Peace and said That the said this to-wit: day July, A.D. offensive device Hamilton did a loud and employ David attract- advertising as a means performance annoyance crowd and to the disturbance ing a of Montrose.” The City language the citizens which the is as upon was based complaint follows: Montrose, “No shall in the person City use bell, horn, bugle or other instrument or sounding loud or employ any offensive device or performance a means of advertising attracting crowd, nor cry hawk any article or goods such manner as to attract any crowd or as to disturb or annoy any person.” Upon trial in the police court Hamilton was found guilty charged, fined ten dollars, and ordered confined in the until city jail the fine was paid, however, exceeding, period thirty days. From this judgment he appealed to the court, county where, a trial to the court without a jury, he again was found guilty and judgment for ten dollars and costs was entered against him, review which he brings the case here on error and ap- *3 for a plies supersedeas. At the request of both parties, we elect to of dispose the matter upon this application. in are
The the conviction facts adduced to sustain afternoon of the day substance On the as follows: his minister of the arrest, error, Gospel, in a plaintiff minister, and one were Gooden, preaching likewise a banking about four from one of the or five car lengths In their corners on the main street in Montrose. preach- services to be held religious and announcements ing The elsewhere were a Chief they using loud-speaker. Montrose, Police received having complaints several citizens the use of this concerning loud-speaker services, at to Hamilton about it and open-air spoke asked him “if he the wouldn’t stop loud-speaker,” “No, which Hamilton the I replied, only way will stop the is you have to arrest me loud-speaker got and throw me in jail. You have to treat me like got did they Paul, Apostle you got arrest me and me throw in I before will jail quit The speaking.” Chief of Police (cid:127) testified that thereafter the voice coming through seemed to him to loud-speaker be louder than before— loud enough to be heard two or three blocks away. business houses in close proximity to where the loud- necessary being close the speaker it was was used might proprietors that the order doors and windows testimony carry The customers. on conversations with concerning the business the noise on effects of the bad neighborhood professional those in the activities of optometrist and doctor, an banker, included that a a Gospel jeweler. about an services continued he had further that hour. The Chief of testified Police gentlemen’s agreement defendant both with moving pic- operator loud-speaker for the respective long they kept their that, ture theatre so as loud-speakers stop in and did not one on move place he not that he did not them, would molest long operator molest of either machine so being latter complaints no around; moved that he had received they were
about sound machines when so used. Defendant that, Hamilton testified in addition preaching loud-speaker, over the he and the Reverend meetings Gooden made announcements of to be held at meetings the tabernacle, and that advertised these only by passing such announcements, but also out handbills. that the ordi
Counsel for Hamilton contends religious question, applied activities nance his loud-speaker, is in connection with which he used the Four unconstitutional, it violates the First and Constitution, teenth and sec Amendments to the federal tion article II of state Constitution relates guaranties religion. to the freedom *4 involving between a conflict case Here then is another authority, liberty labeled that is sometimes a conflict “liberty power” rights police the of indi- or the “civil v. regulatory inhibi- general The v. the welfare.” vidual rights few are, either side on tions and the of exceptions, statement the An excellent absolute. may applied of free to an exercise be limitations which religion Connecticut, is Cantwell v. found 1213), (60 Sup. Ed. 900, 84 L. 310 U.S. court, unanimous Roberts,
Mr. for a Justice speaking “The fun- 303, 304): used the (pp. following language Amend- in that damental embodied concept liberty the guaranteed ment embraces liberties [Fourteenth] declares the The First Amendment by First Amendment. an estab- Congress that make no respecting shall law the free exercise lishment religion prohibiting thereof. The the Fourteenth Amendment has rendered enact legislatures of to Congress states incompetent such The legislation laws. inhibition of on the has a On subject religion aspect. double hand, one it forestalls law of the compulsion by accept- ance of any creed or the form of wor- practice Freedom ship. conscience and freedom to adhere such as the religious or form of organization worship may individual choose cannot be law. restricted On the other hand, the free exercise of the safeguards chosen form of religion. Thus the Amendment embraces two concepts, to believe and freedom to act. —freedom The is but, first absolute nature things, second cannot be. Conduct remains regula- subject tion for the protection society. freedom to act must have appropriate definition to the enforce- preserve ment of that protection. case the every power regulate must be so exercised as not, attaining a per- end, missible unduly to infringe freedom. protected No one would contest that proposition may State not, by statute, wholly deny preach disseminate religious views. Plainly such a previous absolute restraint'would violate the terms of the guar- antee. is It clear that equally a State may by general and non-discriminatory legislation regulate times, places, the manner soliciting streets, its and of holding meetings thereon; and may in other re- spects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.”
It apparent foregoing each case must *5 precau- that facts and be determined on its individual against guard two tionary used to measures must be providing guise dangers: for first, lest, under the guaranteed under our liberties welfare, civil rights unnecessarily nullified; sec- bill invaded be using rights individual ond, cloak, as a lest bill of against the is public allowed to commit a nuisance worse general. an examination Each case demands of ously being is continu- realities, line of demarcation showing the court has one
traced
where
particular
case held that under the
facts in that case
guaran-
rights
there was an invasion of the individual
teed under the
and in
Constitution,
another case
rights'
being
the individual’s
were in fact not
invaded.
Supreme
The recent cases in the
Court
United States
rights
where the individuals’
have been held to have
epitomized
been invaded have been
the then
well
Hughes
1941)
(March
Chief Justice
in the recent case
(61
Hampshire,
Sup.
Cox v. State New
order in connection with the
In
exercise of the right.’
Schneider v. State, supra
163, 60
Ct.
U.S.
S.
page
[308
page 151, 84 L. Ed. 155], directed at
was
canvassing
banned unlicensed
communication of
views, or the advocacy
cause,
of any
door,
from door to
subject
the
only to
power of a police officer to deter-
mine as a censor what
literature
be
might
distributed
and who might distribute it. In
Connecticut,
Cantwell v.
supra
U.S., page 305,
Ct.,
60
[310
S.
page 904, 84 L. Ed.
1213,
In addition to the
cases
foregoing
the Chief Justice
also referred to the recent cases of Thornhill v. Ala-
bama, 310
88,
U.S.
736,
60
Ct.
84
Sup.
1093,
L. Ed.
Carlson v. California,
106,
310 U.S.
60
746,
Ct.
84
Sup.
L. Ed. 1104, in which the
question
peaceful picketing
was involved. See, also, American Federation
Labor
v. Swing,
Likewise religious freedom has been held not infringed a statute by compelling daily ceremony of saluting
235 flag. Gobitis, the national Minersville District v. School Sup. 586, 310 U.S. 60 L. Ct. 1010, 84Ed. 1375. Wagon Dairies, Milk Drivers Union v. Meadowmoor injunc Sup. U.S. 85 L. Ed. ah
tion confined to conduct in a area affected narrow restraining peaceful picketing coercive conduct and upheld continuing long as valid so as it counteracted intimidation, and to that extent was a limitation speech. of freedom of New We the facts in Cox v. State believe that *7 Hampshire, supra, nearly the in resemble those more any mentioned, instant case than of the others above following justified and that in the decision we would be certainly principle in that erty lib- case. And the of ordered necessary with its concomitant measure of control following expression contains an in the excellent words Hughes’ liberties, of Mr. as Justice in that case: “Civil guaranteed by imply the the existence of Constitution, society organized maintaining public order without liberty itself would be in the excesses of un- which lost authority municipality to of a restrained abuses. safety impose regulations in order assure the to highways people public the in convenience of the use of regarded civil liber- has never been as inconsistent with safeguarding rather the ties but good as one of the means upon they ultimately depend. The order which control of travel on the of cities is the most streets recognition familiar illustration of this of social need. highways Where a restriction of the use in rela- that designed promote public tion is in convenience disregarded by all, the interest of it cannot be the at- tempted exercise of some civil in cir- other protection. cumstances would be entitled to One would justified ignoring light not be in the familiar red traffic thought religious duty disobey he because it his municipal sought by command or that means to direct opinions.” attention to an announcement of his are as the case
Fully us Cox persuasive at its decision standards the court applied by arriving in Mr. Jus- case, Cantwell as announced supra, First, tice Roberts. in forbade that case ordinance or services, any solicit person money, subscriptions valuable any religious, phil- charitable thing cause license from anthropic obtaining without first Council, secretary pro- Public Welfare vided a in the event of failure to so obtain such penalty license or certificate —thus it the discretion leaving of one individual grant withhold such license in that individual’s judgment, might bias or prejudice seem best. the instant case the ordinance forbidding the loud-sounding device is not for its en- dependent forcement any individual, whim but made general its application the same manner as other laws acts forbidding particular on the part citizens. Second, in the Cantwell Mr. case Justice Roberts was careful to point out that the defendant’s conduct did not amount to a breach of the peace; was not truccu- lent, and when told to move on after he had played record, which had contained strictures against some of the organized forms of religion, defendant picked his up books and walked up street. In the instant case we *8 find just attitude opposite on the of the part de- fendant, namely: refusal to move on when requested to do the Chief by so of Police and a continued insist- ence on using loud-speaker for his own purposes, there some being testimony, although denied by defend- ant, that the sounds became even louder after the Chief of Police had him asked to desist. Third, in the Cant- well case Mr. Justice Roberts was out careful point used that the sound of the the defendant phonograph by in that case not shown to have disturbed residents street, of the have drawn crowd or have impeded traffic, and that therefore the defendant had invaded no accosted; or interest of the or of the men right whereas the instant case the whole gravamen appear action would to be fact that the defendant definitely prop- had occupants disturbed the lawful erty neighborhood owners of the streets in the loud-sounding device. worthy us of comment
In the instant case it seems to testimony that he that the of the Chief of Police shows gentlemen’s agreement had a with defendant they loud-sounding operator of another device that long could use so same on the streets of Montrose kept moving, practical reason were and this for the moving loud-sounding kept that when the devices were complaint there seemed no citizens; to be from the against the only Chief Police took action the defendant upon stopping when the latter insisted near one busy corners of the main street of Montrose where loud-sounding he continued to use such device with the complaints result prop- that numerous came from the erty occupants property neighbor- owners and hood affected the noise. It seems to us that here there is no evidence of unfairness of treatment or dis- crimination, partiality against no evidence of bias or propagation religious appear certain views. It would applying that the pragmatic Chief of Police in test did not take action in complaints this case until from the citizens made it evident that the defendant was commit- ting a nuisance.
Applying, therefore, the same standards that were opposite used in case, the Cantwell we reach an con- clusion in the instant case from that announced in the differing case, Cantwell because of the facts. In the up instant case the ordinance itself does not set a re- ligious censorship as it did in the Cantwell case—it is solely prevention aimed at the of noises that become nuisances. In the administration of the ordinance in the present attempt, case see no we overt or hidden, to over- guaranties. ride people We believe the protect Montrose themselves from con- *9 cacophony. centrated and continuous judgment accordingly of af- The the lower court is firmed.
Mr. Justice Bock dissents. Justice Bock
Mr. dissenting. Ham- First, the conduct of dissent, I for two reasons: violation ilton does not constitute apply to construed ordinance, if involved; second, the void, in that and is unconstitutional conduct, such religion speech abridges of freedom exercise guaranteed by Amendments First and Fourteenth to the federal Constitution. ordinance, legislative intent, as disclosed
The commodities, regulate advertising was to sale speech regulate re- or the exercise of freedom not to legis- ligion. ignore only language this which, if we The any may application facts to the have intent, lative Montrose, use before ploy * * [*] any attracting us is loud or offensive device as follows: any a crowd * * * “No * * sounding person The exercise * * * shall instrument as a means of free- City em- naturally impliedly speech religion in- dom speech A is delivered of a crowd. cludes attraction The record is silent audience, not in a vacuum. to an attracting a crowd. succeeded on Hamilton whether clearly following language ordinance, goods, hawking any applica- has no article or relates person shall to Hamilton’s conduct: “No tion whatever * * * goods cry any in such man- article or or hawk annoy any as to disturb or ner to attract crowd or any person.” disturbance and an- That eliminates noyance There no from this case. contention features right be where he was did not that Hamilton making preaching and announcements of he when religious exercising He was a constitutional services. religion. right, as to freedom “Wher- both
239
parks may
ever the title
have
rest,
of streets and
immemorially
pub-
been held in
for the use of the
trust
purposes
and,
lic
time
mind,
out of
used for
been
assembly, communicating thoughts
citizens,
between
discussing public questions.
and
use of the streets
Such
public places
part
has,
times,
a
ancient
been
privileges,
rights,
immunities,
liberties of
Hague
Sup.
citizens.”
v. C.I.O.,
496, 515,
307
59
Ct.
U.S.
954, 83 L. Ed.
See,
State,
1023.
v.
308
also, Schneider
Sup.
Using
147,
U.S.
163, 60
a
great convenience to who freedom heard, necessary relationship bears time, as regulated Its be may reasonably use speech. Connecticut, 310 U.S. v. and manner. Cantwell place The vice 1213. Ct., 84 L. Ed. Sup. facts that, applied us is when ordinance before a loud-speaker the use of bar, at it absolutely prohibits *11 Harris, People v. manner, at in time, any any anywhere. Alabama, v. 989; Thornhill 386, (2d) 104 Colo. 91 P. L. 1093. Such 88, 736, 84 Ed. Sup. 310 U.S. Ct. exercise of free speech of the abridgment with agreement a gentlemen’s cannot be left to religion free- such as liberty, chief civil police. Concepts relative and not abso- dom of and the are speech press, so, circumstances; time and lute, vary with and. come which, recent have devices in years, amplification in the exer- use, necessary into their largely place city regu- cise of these That a may constitutional rights. itself late the use of such devices and sounding protect already “from concentrated and continuous cacophony” inertia sometimes has been indicated above. The which v liberty exists in in individual municipalities protecting in must be overcome affirmative action the enactment reconcile, the exercise abridge, laws that will but authority of free to rea- with religion, safety, the interest sonably regulate health, or convenience, welfare and not leave this prob- lem to the arbitrary of a chief of police. action solicitation commercial regulating
An ordinance or- such the application but canvassing thing, is one as that of defendant to conduct such dinance his exercise of with interfering case, thereby instant There is a difference another. right, of protecting the importance emphasizes which degree, of his constitutional from an invasion the individual regulating use distinguished liberties com- in the sale or solicitation of instruments sounding State, v. Schneider 308 U.S. 60 Sup. modities. language 84 L. the ordi- Ed. 155. Under the question, controlling, nance in Hamilton’s con- which is peace, duct cannot involve a breach of the commission - impeding of a nuisance, disturbance There traffic. may per- be such Montrose, ordinances in force in haps prohibition. Hamilton’s conduct their was within solely Our concern here must be with prosecuted. under he which de- The utterances of loud-speaker fendant over the are not asserted to have respect abusive, been subversive or in un- other lawful. the infor- case, in the fifth count of Cantwell
mation, obtained, under defend- conviction was charged ants were offense of common-law inciting peace. Notwithstanding a breach of the defend- something animosity, ants did court, to arouse guarantees, view of the invasion of the constitutional liability speaking through denied court, thereunder. The phase (page Mr. Justice on that the case, Roberts said 311): “Although the contents of the record not unnatur- ally animosity, think that, aroused we in the absence *12 narrowly punish spe- drawn to define and of a statute constituting present danger cific as a clear and conduct petitioner’s interest of the State, to substantial light in the communication, considered of the constitu- guarantees, present tional raised no such clear public peace menace to and order as to render him lia- ques- ble to conviction of the offense in common-law tion.” Angeles,
In the Schneider case the Los Milwaukee absolutely prohibit- Worcester ordinances under review pamphlets ed the distribution of streets, and one public places. of them in other In that case the court purpose keep held that ordinances, of the to good appearance, streets clean and of was insufficient justify police power the exertion of the to invade the guarantees. 242 the case here relies upon the court majority its justify U. S.
Cox v. New Hampshire, appellants against “the sole charge In that case opinion. or proces in a parade ‘taking part was that were they the statute a permit sion’ on streets without public case, v. Wals Trujillo that In referring required.” that said P. we (2d) enburg, 108 Colo. aof of the power statement it contained an excellent in the use public regulations to impose municipality Hughes, quot Mr. Chief Justice case, In the Cox streets. “The de court, said: of the lower ing opinion * * * a license act, a right, fendants ‘had under a re did, after when, if march where and the convenience found that it was investigation quired thereby the streets would in the use of disturbed, changes such conditions be unduly disturb as would avoid time, and manner place ” one, there unlike the case, present ance.’ that time, as to power conferring regulatory a state statute exercise of a constitutional and manner of the place is in no way the Cox case anal It is clear right. to the case at bar. fact or law ogous should be reversed the judgment In my opinion, com- to dismiss the remanded, directions the case plaint.