The substance of plaintiff’s petition is that defendants have conspired to ruin her business (1), by circulating malicious libels about said business, and (2), by unlawfully interfering with plaintiff’s customers and the conduct of her business.
_ In elaboration of these charges the petition avers (1), that defendants have published and circulated, and are publishing and circulating certain hand bills in which plaintiff’s restaurant is stigmatized as being on the “unfair list,” and by which the public are requested to refrain from patronizing plaintiff; (2), that defendants daily stand in front of and near said restaurant and pass such hand bills to customers of plaintiff to induce them to refrain from patronizing plaintiff, and that customers are thereby induced to cease patronizing plaintiff, and (3), that defendants have had constructed a number of large placards on which is printed the following language: “ Do not patronize the Manhattan restaurant, 17 West Fifth street. It is unfair to unionists. Indorsed by Central Labor Council and Building Trades Council. By order Cincinnati Waiters Alliance Local 58,” and that defendants are carrying and causing to be carried these placards daily along Fifth street in front of said restaurant, and at times stopping in front thereof, for the purpose of inducing' people not to patronize plaintiff, and for the purpose of annoying her and interfering with her customers.
Plaintiff further alleges that the charges contained in said circulars and-placards are false, and that the motive for their circulation is to force plaintiff to conduct her business, hire her employes and schedule her wages to employes according to defendants’ dictation, and in submission to them.
There are no other specific averments as to unlawfully interfering with plaintiff’s customers and the conduct of her business except the general averment “that the conduct of defendants is a continuing nuisance and .a malicious libel, and an unlawful injury and annoyance to this plaintiff.”
The petition then makes the usual averments of irreparable loss and damages etc., and prays for an injunction.
Defendants demur generally. The contention between counsel at the argument resolved itself into two propositions — the plaintiff contending that the defendants’ use of the public streets in and about her restaurant for the purpose undertaken by them was a public nuisance, resulting in special damage to her, for which she is entitled, other necessary elements being present, to an injunction ; while the defendants contend that the true burden- of plaintiff’s complaint is the alleged libelous matter contained in the circulars and placards distributed and paraded by defendants, and that there are no facts pleaded in the petition which bring the use of the streets by defendants within the definition of a nuisance. The contention resolves itself into a construction of the petition, and after careful consideration and many readings of the petition, I have come to the conclusion that defendants are right.
The streets are public highways, and the primary use of a highway is for the purpose of passage and transit only. “The use by every citizen of public ways must be use appropriate to the purposes for which they are intended — that is, of transit — with such stoppage as business necessity, accident or the ordinary exigencies of travel either in vehicles or on foot may require. ” (Norristown v. Mayor, 67 Pa St., 355). And in this case it was held that loungers while lounging, not using the streets for purposes of passage, were obstructions in the public right of way, and therefore were nuisances. But this opinion was modified in a later case (Fairbanks v. Kerr, 70 Pa. St., 86, ) where it ish.eld that lounging or public speaking and things of that nature are not nuisances per se, but t-hat they may become so by causing an obstruction of the public highway. (See Wood on Nuisances, 3d Ed., sec. 261.)
And it seems to be ,a settled rule that from the direct act complained of there must ensue certain consequences or results which destroy the main purpose and use oft! e public highway, viz., that of passage to and from, and cause the same to be impeded and obstructed.
But this would be a public nuisance, and to entitle a complainant to seek a personal remedy therefor either by injunction or in damages, he must show that certain special damage, different in degree from that sustained by the public, is suffered by him. Now, there is not an averment in the petition that alleges that any act or conduct of the defendants results in an obstruction of the streets in the neighborhood of plaintiff’s restaurant, nor is there a single averment that .couples the injury and inconvenience complained of by plaintiff with the use of the streets made by defendants. The real gravamen of -plaintiff’s complaint is the circulars and the legends printed upon
In the United States the power would seem necessarily to be absolutely wanting in view of the uni form constitutional provisions regarding the freedom of speech and the liberty of the press, whereby it is guaranteed to every citizen that he may •freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right and that no law shall be passed to abridge the liberty of speech and of the press. The courts are not higher than the organic laws of the land, and when that confers a right, it is beyond the power of the courts to deny, abridge, or restrain the exercise of the right. Abuse of the right may be punished criminally, or by civil suit for damages; but the constitution, from motives of public safety, and to prevent the forcible suppression of grievances,has wisely provided, by implication at least, that the abuse of the right shall not be anticipated by the courts and enjoined.
The demurrer to the petition will be sustained.