*1 quirеd law a was also fact which was properly jury. submitted to the
From careful examination the transcript we are of opinion competent there was evidence to submit negligence defendant’s plaintiff’s issues con- negligence to the tributory jury.
All of the exceptions defendant’s each case are over- and each case ruled, superior remitted court for entry judgment on the verdict. Reargument.
On for Motion OCTOBER 1951. After our the above cases was
Per Curiam. filed, the leave of filed a motion for reargument.
Having in mind that the defendant’s exception under denial сonsideration was to. motion direct a verdict, carefully we have re-examined the transcript with reargument reference to the special reasons for appearing In judgment motion. our they present instant no fully matter which was not considered and passed the conclusion stated in our reaching opinion. denied.
Motion F. for Dwyer, plaintiffs. Edward McGee, Frank J. Swéeniey, A. defendant. Earl B. State vs. William Fowler. 10, 1951.
AUGUST Capotosto, Baker, O’Connell, Flynn, J., Condon C. JJ. Present: *2 complaint charges J. is a criminal which This Condon, public religious with a making the defendant address a meeting in Slater Paw- Park, city a park tucket, violation section 11 chapter city. ordinances After trial and conviction district court the appealed superior jury trial. claimed *3 the case
When was called trial the court superior a jury impaneled defendant, by and before was leave of court, quash complaint grounds moved to the on the abridged rights the ordinance and denied of the free assem- bly, speech, guaranteed free worship free the first and fourteenth amendments to the of constitution the United States and the constitution of this state. The justice trial declined to rule on the mоtion because he questions deemed the constitutional thus raised be of to importance they doubt and such should be certified court for our determination to this to- pursuant general laws 1938, chapter 545, §6, as amended by public 1940, laws chap'. 941, sec. 2.
Under that the superior statute is authorized to certify only questions the raised and not the cause itself. City United Co. v. Tax Newport, States Trust Assessors of of justice R. I. accordingly 47 420. The trial entered a formal certifying following specific questions: order the of Chapter “Is Section 11 of 149 the of ordinances City of Pawtucket, approvеd April 17, on face and as construed and applied unconstitutional abridges it of rights because the defendant to of Speech, Freedom Freedom of Association, and Freedom of to Worship, contrary the First Four- teenth Amendments the United States Constitu- tion. of Chapter 149 of the
“Is Section ordinances April City Pawtucket, approved 17, 1916, contrary provisions of Article I of Constitution reference particular of Rhode Island, State with 21.” 10, and to Sections 3, we us and not the case before only questions
Since those with- constitutionality of upon pass must the case out whiсh out reference the circumstances heard in the district origin'ally and was court. arose face the is hereinafter out ordinance, On its which set full in a sixteen sections appendix, prescribes series lawfully any person may certain under which conditions using parks belonging privilege avail himself city. of such conditions and maintained One is charged contained 11 which with section violating. That reads follows: section
“No person any political religious shall address or meeting this public park; but section shall or religious be construed to club prohibit any political sociеty visiting any in a public park body, pro- vided that under the no address shall or made auspices of society park.” such club *4 not prohibition The therein is directed at particular religious group, general but is and without applies to all groups political groups all such and to as well.
The ordinance a whole an the represents as of exercise power which the the city management council has over and of property. control in exercise municipal Apparently the that power city city’s that the council decided the parks certainly would mоre serve the purpose their establish- areas of and if they ment as rest recreation were not allowed to. for either or religious political become forums contro- versy. legislative This ordinance is not a act recent it directed the origin specially nor is at activities sect it represents. the Rather is municipal which a standing as regulation long by is evidenced the date of it April 17, its and hence approval, antedates of that in many years prominence the recent sect federal litigation. was designed are that ordinance not to
We satisfied the to with freedom of nor fetter freedom assembly, interfere 'but religious worship, solely guard or speech prohibit city’s for reason- parks being the used activities that could and disorder to that ably annoyance lead city defeat ends for which the had extent the established rest parks pro- the as areas of and recreation. The public including hibitions contained ordinance section that end. quite definitely directed to' Out of experience its conducting prudential the city, city affairs of evidently that council was convinced addresses to or not religiоus political groups parks would for purpose parks being with which the were consistent light maintained public expense. at Viewed that police to be a reasonable appears regulation, people acquiesced as such the of Pawtucket have long It validity. here, its is attacked time first aware, thirty-five years far as we are after its approval. The defendant 'he right claims has constitutional hi speak any public park. He the city concedes that regulate right it may reasonably but that wholly cannot In exercise. other he asserts prohibit words, only speech privilege free but also' of a free forum right. to exercise that And he which contends that he supported judicial highest such view authority. He relies on a number recent cases decided of the United where States various kinds of municipal practices ordinances administrative were held violative *5 rights guaranteed the first amendment the United1 States constitution and made applicable to the fourteenth amendment. Many states of those do not involve an ordinance cases which conditions the a owned municipally park upon lawful use оf compliance regulations certain definite that are n'ot with discriminatory. them do involve an However, some of use park. refer to such a opinions The most
21 defend upon which those and the ones important of cases Hague Committee rely strongly appears ant most v. 496; Schneider v. Organization, 307 U. S. Industrial for Texas, 413; State, 318 U. S. Jamison v. 147; 308 U. S. Maryland, York, Niemotko v. Saia v. New 558; U. S. York, New U. S. 290. Kunz v. 268; 340 U. S. in and in from quoted part
The brief has his Mr. language lay appears particular stress in of the court announcing Roberts the decision Justice Organization, supra, at Industrial Hague v. Committee for title of аnd follows: “Wherever streets page 515, as immemorially 'been held in may they have trust parks rest, time been and, mind, for the use of the out have public communicating thoughts of assembly, for purposes used discussing questions. citizens, public between and Such use has, times, and ancient places the streets and privileges, immunities, rights, been a liber- part ties of citizens.” justice for only speaking the learned was
Apparently Moreover, associates. we are at a himself two his espe- to know what was intended that declaration loss a cially essaying it was made distinction between sincе Massachusetts, then before the court and Davis the case v. 43, upheld 167 U. S. which the conviction Davis for on Boston Common violation of an ordinance preaching Singularly enough like one in the case at bar. Hague far case was not overruled case as we although not been overruled, are aware has the court has to refer to it later had occasion several cases. Hague v. Committee
In the circumstances Industrial Organization, supra, hardly can be considered decisive of the Saia v. New Incidentally the later case of case bеfore us. York, which 334 U. S. involved use of a “loud Mr. public park, Justice Jackson dissented and speaker” following concerning quotation made the observation Hague from Mr. Justice Roberts’ “The case: *6 C.I.O., Hague case of v. 307 U. S. cannot properly be quoted connection, opinion this for no' therein was ad- hered to a majority of the Court. quotation The opinion today support only Court’s had two Justices, with a The possible third. failure of six or seven Justices subscribe those views would seem to fatally impair quotation standing authority.” that as an 334 U. S. Footnote 1. If 558, 568, notwithstanding criticism, previоusly-quoted language of Mr. Justice Roberts Hague case, supra, be binding is to deemed as im- authority pliedly overruling Massachusetts, supra, Davis v. a great service to state performed courts would be if the supreme court itself would make that overruling clear and definite that so courts would have no reason misled future. We safely rely upon cannot some other court’s inter- pretation of the language and long effect that case. So as the Davis case stands being without specifically overruled itself, it is difficult for say us to an ordinance substantially the same as one involved the Davis case is nevertheless unconstitutional beyond a reasonable doubt. defendant,
The however, points to Saia v. New York and Niemotko v. Maryland, State supra, decided since the Hague case, as clear instances where the supreme court has definitely included public parks, well highways, as within orbit protecting decisions the freedoms first amendment from abridgment local or denial. In each of those it is true cases the locus of the forbidden act was a public park but there the similarity to the case at bar In ends. the Niemotko there case was no gen- ordinance of eral application involved but rather an of arbitrary act an discrimination administrative official. Indeed at the very outset of its that case the court observed that there was no regulating the use of the park in question.
farAs
as the
case is
Saia
concerned the ordinance there
*7
prohibited
the use
a “loud speaker” device which casts
directly upon
its sound
streets and
A
public places.
public
park
only
was
incidentally involved
the
because
in
up
speaker”
set
his “loud
a place.
such
He
arrested
was
for using a “loud
in
speaker”
defiance of
ordinance,
the
not for making
public
address in the park. The ordinance
in question apparently
was not
invoked
city
prohibit public
to a religious meeting
addresses
in
park.
The court in a five-to-four
that
city
decision held
could
not ban the use of a
speaker
loud
the manner provided
in that ordinance
comprehended
because such use was
within
the constitutional guarantee of
speech
freedom of
under the
first amendment.
It
was
that
that the court
split. We do not think
point
that
of decision is relevant
to the
particular controversy
the case at bar. Moreover
authority
of the Saia
would
questionable
case
seem to be
in view of the decision in Kovacs v. Cooper,
In the Kovacs case the court upheld an ordinance which prohibited of “loud speakers” use on the streets and places Trenton, New Mr. Jersey. Justice Frank- furter Mr. Justice Jackson who had dissented in the Saia case concurred the decision and commented adversely on the Saia decision. The former said it would be “to start unreality” with an to rest the Kovacs decision on case, and the latter expressly said that repudiated Kovacs Saia. justices Three who had concurred in the Saia decision dis- sented in the case and also stated that Kovacs decision repudiated the holding Later Saia case. in Niemotko v. State Maryland, Mr. supra, Justice Frankfurter con- curring a separate opinion said: “In Cooper, Kovacs v. 336 U. S. 77, part Court construed the ordinance as allowing operation conviction for sound truck emit- ting 'loud and noises, raucous’ and part construed the ban all sound trucks. The limits decision Court upholding the ordinance are therefore clear, but the result in any event does not leave Alexandria,
Saiа Breará v. decision perhaps intact.” And 341 U. S. a further indication of a more restrained approach solution conflicts over local limitations dissenting justices on those freedoms. One of the therein goes say far as so overrules certain decision prior oases which the court declared invalid certain *8 municipal liberty ordinances as violative of of speech, press In religion. any explicit event clarification would seem to be if the trial necessary given guide courts are to be a clear deciding in those legislative cases that enactments beyond reasonable doubt with the conflict constitution of the United States.
We the opinion are of that the other cited cases stronger defendant afford no support to his contention than mentioned and, therefore, those above we need not discuss them here. Moreover we are convinced that the case at bar Massachusetts, ruled Davis v. clearly U. S. 43. The justice of the expressly district court relied that case in finding the guilty. Perhaps a brief discussion background of its should be made here because it is obvi- ously a decision United States been has reluctant to disturb in spite language in a number of more recent which opinions might seem to be inconsistent therewith. In our it is a opinion case more nearly on all fours with the at bar one than of the upon by cases relied the defendant.
Davis contended that he had a
constitutional
guaranteed by the fourteenth amendment
to the constitu
tion of the
preach
United
the gospel
States
on Boston
Common notwithstanding
an ordinance which expressly
forbade
making
of a public
upon any
address
grounds except by permission
mayor.
The supreme
judicial court of
in upholding
Mаssachusetts
conviction
his
unanimously held that
the ordinance was constitutional.
Davis,
Commonwealth v.
In a v. 336U. S. Kovacs govern- “The Mr. Frankfurter ideas now 95, ing Justice said: speech protection of freedom constitutional essentially opinions of Mr. derive Justice Holmes. * * * ready Accordingly, Mr. far Justice Holmes was more legislative inquiry invasion where free involved to find was deny than in debatable area of economics.” Few will judicial accuracy of Mr. estimate Justice Holmes’ this promoting disposition and his influence branch basic this development. present Apparently, of the law to state *9 ready, despite far however, he was his solicitude deprive precious municipality a freedoms, these to of its power property. the use to control of own Mr.
After Justice had been Holmes elevated to and had supreme eight years on the federal served court for he apparently opinion continued of to be the state laws hurriedly should not be overthrown as violative of bill rights Speaking or fourteenth amendment. for a Haskell, unanimous court Noble State Bank v. 219 U. S. pressing 104, he must said “we be cautious about drily the broad words of Fourteenth Amendment to a logical Many extreme. it laws which would be vain to ask easily enough, to shown, the court overthrow could be to transgress interpretation a or scholastic one another great guarantees Rights. They the Bill more or liberty they limit the оf the less individual diminish property scientifically a to certain extent. We have few legislation, criteria of it often certain difficult police power mark to the line where what is called the is limited the Constitution of the States the United judges States, should be slow to read into the latter a against law-making power.” nolumus mutare as supra, appealed Davis, When Commonwealth v. was Davis court of the United States he con- tended that the local law under which he was convicted contrary was to the fourteenth amendment to the constitu- speak- tion of the United States. Thеre Mr. Justice White, ing rejected saying: for a unanimous court, such contention “The Fourteenth Amendment to the Constitution of the destroy power United States does not of the States police regulations subjects enact as to the within their * * * creating control and does not have the effect a particular personal right in the citizen to use property in defiance of the constitution and laws following State.” And he concluded with the so words, apposite plaintiff in our to the case at bar: “The right granted by in error cannot avail himself of the yet exemption regula- Stаte and obtain from the lawful subjected part tions which on this his was law.” longer Unless Davis case i'sno the law the binding upon here is valid and the defendant. concluding Before our consideration of this contention perhaps some reference should be made to defendant’s argument religious may permitted that a address public park contravening concept separation without *10 expounded of church and state as in the recent case of Illinois ex rel. Education, Etc., McCollum v. Board 333 pressed point U. S. 203. Defendant has this at considerable length argument. appears in in his brief and his oral This supererogation, claiming to be an act of state is not strength that the ordinance is valid on the of the McCollum frankly parks may but case, concedes that the be used for religious purposes. quote following certain We from page nothing 19 of its brief: “There in is ordinance, this prohibit religious any which would services of kind from being public parks City. nothing in held of the There is
27 any prohibits individual ordinance which or restricts this conducting offering singing hymns prayer or from religious or only parks. public It is an address ritual in the prohibited on an this ordinance.” occasion upon thеrefore not to decide whether We are called case which denies constitutional doctrine of the McCollum religious public period of a for a instruction use school religious public parks permits for nevertheless use services.
Defendant has also contended that section violates rights guaranteed and 21 I of sections 10 of article Although the constitution of defendant did not this state. quash, point specificallyin motion to out those sections his justice as he the trial order of done, should have his they upon. certification are the relied assumes sеctions hesitancy saying We have no that insofar as sections those assembly, religion, speech, secure the freedoms and of any section of the ordinance here does not true sense violate them. given guarantees
This court has not to those the wide sweep which the federal court in the last decade or given guarantees in two has to similar the first amendment complete the federal constitution. Of course we are rights guarded vigilantly only accord that such must be but from direct also indirect attacks. Insidious no less open sternly than they them if assaults must resisted not to erosion. But we be lost are also aware liberty public that true kind cannot exist without liberty order. Preservation of the balance between on the authority order one hand and on the other has ever for a difficult task the courts and no difficult been less charged immediately duty maintaining those with the It be our order. should constant concern while safe- go unduly guarding the first not to so far as to make difficult discharge perhaps impossible the other. ques- frame we In such of reference have considered the *11 propounded here. far our tions As as state is constitution nоthing contrary we thereto in see this ordinance. concerned As to the federal constitution we follow the law declared supreme unequivocally the United States court. It has supra, Massachusetts, in declared Davis that an ordinance. v. like in the one the case at bar does not violate that con- stitution. In no later decision do we find that the definitely court has overruled that case and decided to the contrary. authority We, therefore, hold on the question case that does not violate the federal constitution.
Accordingly negative we answer each set papers certification, out in order of and the in the case superior are ordered sent back court for further proceedings. dissenting. agree J., I am unable to with the
Baker, majority opinion my judgment because in 11 of section chapter city 149 of the ordinances of the of Pawtucket August clearly prohibitory 17, enacted any and not merely regulatory respect sense of free speech public park city. in a in that The section does may provision contain, even for what it be a worth, that a may by municipal authority permitting license bе issued making any any of an maimer, time, address at any place. may chapter It be that other sections of the regulatory they way nature, but in no refer to or only with 11, have connection section which is the portion chapter questions of material to the before us. plainly separable 11 is Since section distinct and from the validity the'chapter rest of of that section should rest language upon clearly its own without reference to other provisions chapter. unrelated of said my opinion Massachusetts, in Also Davis v. 167 U. S. majority properly relies, which of the court cannot govern held to the instant case. While it is true that specifically the above-cited case has never been overruled
29 supreme court of the United nevertheless States, in my judgment court, that in later decisions where it re- ferred to the Davis so case, has weakened its effect as an I authority that am it accept controlling unable to here. as Hague Among such v. Committee Industrial decisions are Organization, Texas, Jamison 307 U. 496, S. 413, v. 318 U. S. York, Saia v. New Maryland, Niemotko v. 334 U. S. 340 County Carter, Milwaukee U. S. 268. See also 258 v. Wis. 139, a recent opinion a state court of last resort. Several of these cases involve right of free speech parks. general The of law principles applicable right to the speech freedom of assembly and under the first four- teenth amendments of the constitution of the States, United out in set and in cases in- others, substance consistent with and contrary in the Davis holding to the case.
In addition it may be noted that
in Commonwealth v.
Gilfedder,
For the stated it my reasons is opinion that section 11 of chapter ordinances of city of Pawtucket contrary pertinent provisions of the first and four- teenth amendments to the United States constitution. I the first certi- answer in the affirmative
therefore justice. trial fied to us 11 of the I section In of the fact that have construed view *13 constitution, the federal to be invalid under quash motion to did further as the defendant his particular specifically point of the con- out the sections alleges which he are violated of this state stitution requires, practice I our am of 11, as well-established section unnecessary for me to that is answer is justice. by the trial certified second dissenting opinion concurs of Mr. J., Capotosto, Baker. Justice
APPENDIX “Chapter 149.
Approved August 17, 1916. Providing Regulations An Ordinance Rules And For City In The Public Parks Of Pawtucket. City City is Council
It ordained Paw- tucket as follows: person 1. or Section No is allowed to land take any pond. passengers from on boat the banks of the Any person entering leaving or a boat must do so at landing provided therefor. person occupy allowed to tennis 2. No
Sec. patrons for more than one hour if other court waiting play. playing Park are While on the tennis patrons spikes. must wear without hеels shoes or person profane lan- Sec. 3. No is allowed to use guage in the Park and and Children Ladies must not annoyed by anyone. or molested be open Park 4. from Sec. Slater shall April until eleven o’clock afternoon from sunrise first and from until first, to November sunrise ten o’clock April afternoon November first to first each every year; person and no shall enter or be within park except of .said the limits without between said hours
permission Super- from the or Commissioners Parks. intendent take,
Sec. 5. No person pluck, shall injure, destroy, cut, mark any flower, or defacе root, plant, shrub, tree, building, fence, monument or other property any park. person No throw a stone or shall other missile any park.
Sec. No person 6. ride or any shall drive within at a park speed exceeding rate ten miles hour. per person No shall or ride drive animal, bicycle or other vehicle except upon driveways; nor ride or any animal, bicycle drive or vehicle other than hand side driveways, except cross driveway turn out for some obstruction, or bicycle for some animal, or other going vehicle same direction.
Sec. 7. Automobiles, vehicles, or other must not be *14 driven per faster thаn ten miles hour within the limits of the Park.
Sec. 8. No person shall drive any heavy team, nor any swill or residuum nor cart, any team carriage or the purpose for of business, any into park, without from permission Superintendent Commissioners or of Parks. All
Sec. 9. vehicles while within the limits of the Park must conform to law strictly regarding lights to be carried. No
Sec. 10. person shall or fish in, go bathe nor into, any nor send animal into, any of the waters of any nor park, any disturb of fish, birds, water fowl or in any park, animals nor throw or place any article or thing waters; in provided however, said fishing any such from waters boats owned by City may Pawtucket be allowed the park commissioners at such regulations times and under such and upon payment of such fees as may said commissioners prescribe time to time and determine. No
Sec. 11. person any shall political address or religious meeting any public park; but this section prohibit shall not be any construed to political or religious society club or from visiting any public park provided in a body, public that no address shall be under the auspices made of such or society club such park. having the owner or being 12. No person,
Sec. or goat, dog, fowl, or swine charge custody any cat, fowl, dog, goat, swine cat; allow such cattle, neat shall or to remain any public park to enter or neat cattle therein. except employ No person, 13.
Sec. light, shall superintendent parks, commissioners square or any any park, fire in or make build grounds. be automobile, vehicle, 14. or other shall No
Sec. stationary any park said part remain permitted except such minutes, than ten longer period for purpose by for assigned be such shall locations as charge of such any commission; person park any time, upon shall at or other vehicle automobile such officer, immediately remove any the direction to such location as or other vehicle automobile shall direct. officer violating provisions Any person 15.
Sec. twenty exceeding fined this ordinance shall of dollars, ten exceeding for a term not imprisoned or be offense. days each effect ordinance shall take 16. This
Sec. passage.” Raymond J. Pet- General, Powers, Attorney E.
William for State. Counsel, tine, Special Coving- McGrane, Hayden C. Arabian, John J. A. Aram *15 Bar, New York defendant. ton, of P. Carr. Harding I. vs. Thomas Donald R. Chase, Jr. vs. Same. Howard 13, 1951.
AUGUST O’Connell, Baker, Flynn, J., Capotosto, JJ. Condon and C. Present: