*1 case, with our papers decision endorsed there- . are ordered to be on, sent back to the for superior court further proceedings. C.
Flynn, J., J., dissent Condon, for substantially Opinion separate reasons stated their opinions Governor, 76 R. I. 249. George Ajootian, se, for pro complainant. Ward,
Matthew E. for respondent Providence Redevelop- ment Agency.
William McCabe, E. City Solicitor, McManus, Francis D. City Ass’t Solicitor, for City of Providence. Powers,
William E. Atty. Gen., Coogan, Robert A. Ass’t Atty. Gen., State.
State vs. William B. Fowler.
AUGUST 1952. Flynn, J., Capotosto, Baker, C. O’Connell, Condon and Present: JJ. *2 charging complaint C. J. criminal This is Flynn, 11 of violating chapter defendant with section 149 making of Pawtucket an city by ordinances of address in a owned and main- religious meeting public park to a in the tenth by city. tained that The case was tried first judicial following district court and defendant’s conviction duly appealed superior he to the court. How- sentence before trial and of court defendant filed a ever, by leave quash complaint. Thereupon superior motion for determination, court certified to this court accordance general 1938, chapter 545, §6, with laws amended 1940, chap. 941, laws sec. certain public questions of importance as to the constitutionality doubt ordinance. thereof
Upon we held substance that consideration designed the ordinance on its face not interfere rights defendant’s of freedom speech, with or of assembly, that religion; regulatory it was of a and nondis- criminatory many ordinance which was enacted years ago the maximum orderly to secure reasonable and use of the park by recreation; rest and effect to the one which purpose principle was similar Massachusetts, in the case of Davis v. was involved 43; that, unequivocal statement of law U. S. since Davis case had not been overruled not supreme court, say beyond we could a reasonable doubt the ordinance here was unconstitutional in violation of the first and fourteenth amendments constitution; United and further did guaranties rights violate similar of such in the constitution Fowler, of this state. State v. 79 R. I. 16.
Accordingly the was remitted to superior after a trial de novo in which where, jury trial was speci- fically defendant waived, was convicted and to sentenced a fine of pay Thereupon $5 and costs. he duly prosecuted his bill of four exceptions court, only to this but the first, are being pressed. second fourth now The third, being neither nor briefed is deemed to argued, be waived under our practice.
The evidence is either admitted or not disputed. The defendant is a resident of Arlington, Massachusetts, and is a minister of the group known as Jehovah’s witnesses. He invited the local or Pawtucket members of such group deliver a bible discourse to their assembly to be held Slater Park on September 3, 1950. The city Pawtucket that park, owns which an has area of approxi- 194 mately acres and is situated the residential section city. of the For great many years it has been main- tained as a public park having a variety of facilities for rest recreation. range These generally from tennis gardens. courts to formal The mere assembly a group of people, excluding, however, any public address with or without the aid of a sound-magnifying device, could be held without unduly interfering with the park use of the others.
From 1916 to date use of park has been regulated in the public interest by in question the ordinance and a nondiscriminatory administration thereof. That ordinance, 88 are of which sections, many sixteen 149, contains
chapter rights. appears constitutional the exercise of unrelated to in this previous to our an appendix in full as Fowler, State v. made. hereby reference to which case, of the at the base thereof, 11 Section supra. person “No shall as follows: reads controversy, instant park; meeting any public religious or any political address any prohibit not be construed shall but this section any visiting public society or religious or club political address shall that no provided in a body, park society such of such club auspices under the made park.” permis- had received group of the local members had used religious hold assemblies previously'
sion Sundays. preceding on two purposes park ordinance, of the express terms However, contrary address about began 1950 September on defendant meet- religious for a had assembled there who persons mem- assembly constituted ing. Approximately strangers were religious other 250 group bers of the *4 meeting. The latter to such had come as invitees who city. not of the were residents probably the began that defendant to address disputed is microphone and two “loud speak- with the aid of a meeting devices; proceeded that he with his address suffi- er” thus religious interruption character before ciently to its define admittedly and that the address as made was by police; the of ordinance. After contrary provisions to the literal the in- by police, the defendant being interrupted politely was the instant com- go police to the station where vited and issued for his was out the warrant was plaint sworn intimidation, of force question arrest. There no excessive is before, during on of the courtesy police lack of the meeting. contrary The is admitted. or after the defendant, trial was about to commence with When the superior court, quash, made a motion to permission grounds in on the orally writing, and ordinance unconstitutional is applied on and as construed and its face to freedom rights of defendant abridges in con- worship, freedom of assembly and freedom of speech, amend- the first and fourteenth trary provisions to the the United ments to the States constitution 21 of I of the 3, article 10, of sections provisions motion denied and Rhode Island. This was constitution of subject exception. of defendant’s first is in argument defendant concedes his brief and grounds on the identical and raises such motion based is in questions those constitutional involved same State v. by decided this court certification Fowler, supra. However, he insists that law and have failed applicable we have misconceived mandate laid down follow the in many again cites; court cases which'he erroneously relied case which upon that we have either not the law or not he now point. Especially Texas, Jamison v. emphasizes 413, cases 318 U. S. Gilfedder, Commonwealth v. to show that Mass. Massachusetts, supra, of Davis the earlier case no longer law of United the circumstances applicable here.
In stroxig argument view of the oxx we point this have re-examined the many cited cases but we fail to find axiy lays express whereixx of thexn dowxxan mandate requir- ixxga different conclusion the one which we reached on expressed previously pertinent axxd the basis of the law uixaxximously exxuixciated the United States supreme the Davis case. In judgment our that case con- *5 ixi cerned axxordinance which and substance effect is similar in prixxciple purpose axid to the one in the ixivolved general instant case. It was of a part designed ordinaxxce regulate or park to control common owned was city or axid general state was maintained of convexxiexiceaxxdcomfortable use a whole. public as in regulation permitted Likewise practical religious of all to a prohibition effect what amounted or common in that addresses to assemblies political in under the ordinance expressly much as we have park, herein. consideration
Consequently the Davis case is clearly distinguishable Texas, on defend- supra, from Jamison v. which is relied made the ordinance There, among provisions, other ant. circulars, any handbills, or unlawful scatter throw “to any de- advertising or device cards, newspapers any city in the upon any or street or sidewalk scription, along make Nothing in ordinance purported of Dallas.” to distribute religious pamphlets, yet it unlawful from the evi- gravamen complaint there, as viewed solely distribution directed dence, was defendant’s had the back reference to religious treatises which on on purchased a book which could be desired. Therefore the face of the ordinance and on the that case is facts different from the Davis case. Texas, supra, Jamison in the ordinance differs
Moreover still further from the one the instant case expressly recognizes right religious ordinance here groups to assemble and nowhere it unlawful makes dis- religious religious meetings tribute or to hold pamphlets and services. Therefore the Jamison case does not appear carry any to us to mandate, express implied, applicable to the ordinance and facts of either the or the one now before court. this no purpose repeat will serve useful what said in our on previously concerning the certification the numerous cases relied on by defendant, except perhaps to observe that we find it difficult to determine precisely which of the of law as principles stated certain of the main opinions actually are concurred aby majority of justices of the United court. Likewise in those it becomes hard know, cases view of language in the concurring dissenting several opinions, to what extent law in some statements of the main opinions may *6 inferentially in later overruled or restricted
have been cases. again may point Davis case that the out, however,
We unanimously judicial supreme of Massachusetts court the right applicable unequivocally to the law stated park public to a or common use member of an individual municipality regulated by the state that maintained is. whole, and such statement as a for use approved incorporated expressly as of the law was supreme in Davis v. court of the United States supra. Massachusetts, supreme the United added court of
Further the following of the law which was statement thereto unanimously conclusively is, therefore,
concurred in: “It right plaintiff in in the error to no determined there was subject except in mode and such such use the common legislature may regulations deemed in its wisdom have as the prescribe. proper The Fourteenth Amendment to destroy not of the United States does Constitution regulations police power to enact * * * subjects and does not have the within their control right creating particular personal effect of citizen to use public property in the constitution defianceof ours) (italics and laws the State.” supreme though frequently cited to the case, That court expressly not been overruled States, has contrary distinguished has court. On the it been Ordinarily in which it cited. form cases some distinguish really own if court does one of its cases longer it and to hold that case no intends overrule jurisdiction. properly applicable law of that states expect reasonable to and when the Moreover actually United States intends overrule express in the case, statements of law it will right equally to do to itself the so unmistakable reserve guidance language for the of other courts which must conform to that decisions. court’s *7 92
But the defendant argues nevertheless the Davis case has in been nullified and effect by implica overruled gathered tions to from statements certain of the cases decided supreme States court and opinion. our former He urges discussed decision the supreme judicial court of Massachusetts in the case of Commonwealth Gilfedder, supra, shows a proper conception of the effect of those decisions and states presently the law governing kind. cases this Apparently Massachusetts court that case did not adhere to the law previously stated by it case, Davis which had approval by unanimous the United States supreme court. It is significant, however, that the Massachusetts court did not overrule its own decision the Davis case and expressly conceded that it could not find a case where the supreme court of the United had overruled ap- its proval of that case. may Furthermore it be noted that the supreme judicial court of appears Massachusetts to have ap- plied with elsewhere, to a reference certain decision of the United States supreme court, principle that any change by way of extension in the ruling of the then under consideration come “must from the court which pro- first nounced Sherrer, that doctrine.” Sherrer v. 320 351, Mass. agree 359. We with that pronouncement. By analogy here, if the explicit ruling of law in v. Commonwealth, U. is to S. be overruled, it should come only from the supreme United States court.
anyAt rate the difficulty which we have with the pro- cedure indicated that opinion is twofold. We are bound to follow the supreme court of the United States in its decisions relating to the law governing the United States constitution. But we are not bound necessarily by another state court’s interpretation of or implications from the decisions of the United supreme court. Secondly, we cannot believe it to be a sound constitutional principle to leave the law applicable to the United States constitu- tion to broad implications drawn generally by state courts supreme court. Con- opinions of the' United' States forty-eight
ceivably on there could be different such a basis thought state court deductions or inferences as what each court really meant decision of United States as to the limitation, any, on the exercise particular to a state right which, according constitutional *8 of deduction, majority court’s had the concurrence a of the judgment court. In our supreme United States is desirable or substitute for an helpful a authoritative objective guide expected the state are to follow- which courts in such important determinations.
On a were to hand, practice the other be adopted, then if all courts were in on agreement particu- even a state from inferentially language lar conclusion deduced in cer- opinions tain supreme court, of United States latter, determining which alone has the sole of prerogative questions relating to United constitution, might say majority well that a of that had court never overruled the case; been always distinguished that such had without overrule intending it; still is appli- law in question cable of case where type involves only the of right, public, defendant’s as member in a manner and under speak conditions which would equal of other rights violate the and correlative members public to a reasonable park use of the for its dedi- In all purpose. cated our judgment, appears by referred to- cases thus the defendant and discussed in our previous there opinion, nothing which would prevent such conclusions the United States supreme court.
In that connection it is interesting to note of the case Geuss, Pennsylvania Commonwealth v. 168 Pa. Super. of the supreme which affirmed of court Pennsylvania in 368 Pa. 290, and certiorari was denied by the United States court since supreme argument herein. Pennsylvania, Geuss U. S. 912. There the supreme apparently court did not feel constrained to interpret urged by here the statements defendant the manner principles appearing opinions certain Pennsylvania supreme court. compelling opinions a conclusion that not read such as did part of must invalid as a reasonable if, an ordinance prohibit regulation, purports an individual right speech exercising in a of freedom a constitutional pro- place. public that case involved an ordinance While hibiting public highways, on the use of sound trucks speakers” in here we have the of two “loud whereas use public park city, yet in a residential section of the small underlying principle prohibiting a constitutional right regulation of a reasonable interest analogous regulation in the ordinance as con- applied in strued and the instant case.
Further, defendant’s claim leads discrimination. *9 public, para would in one him, create as member of the a right whereby may only mount park he not insist the public expense be maintained at a forum for the as right may exercise of his constitutional but also that he right sound-magnifying equip exercisesuch with the aid of necessarily abridge destroy equal ment so as to or rights Granting correlative of others. his constitutional right speech, equal to freedom of others also have an con right compelled stitutional not to be to listen and not religious meeting forced to attend a and, as members of the public generally, person destroy not to have another their rights park purposes to use the for its dedicated of rest unequivocal and recreation. We think that the statement appears of the law as it the Davis case is sound, reason ably protects rights of defendant and others, applied opinion right should be In here. our defendant’s paramount rights is of all others and its exercise indulged is not to be without reasonable limitation. Such right employed a ceases be in a reasonable manner when things in the nature of its exercise, as here, is bound to rights of other abridge destroy constitutional equal public. members
At fail to find wherein any rate the circumstances we law of the has applicable constitutional United States a mandate, been amounts to clearly stated so urged defendant, or that would constrain us to reach a in our expressed previ- result different that which we ous before on the when case was us certified questions. Fowler, supra. On the contrary State we prefer recognized prohibits rule which a apply legislative state court from a striking down enactment beyond it appears unless a reasonable doubt that it violates a particular provision constitution States or of long unequivocal this state. So as the state- ment of law of the United States in the case left standing is without reasonably equivalent modifying statement or overruling it, we find impossible say beyond reasonable doubt nondiscriminatory realistically regulatory ordinance the instant unconstitutional the reasons asserted by the defendant. The exception defendant’s first is there- fore overruled. to dismiss, motion subject of defendant’s
second no exception, place practice has our and for that reason could be overruled. However, it admittedly involves the same question essential of law which has been dis- cussed and decided our previous opinion and also herein *10 under plaintiff’s the exception. first Likewise the defend- ant relies on question the identical under his fourth excep- tion, there dispute because is no as to the evidence that the is guilty defendant the ordinance is valid. These exceptions are therefore overuled.
For stated, the reasons all of the defendant’s exceptions are overruled, decision and conviction are affirmed, and superior case remitted to court for further pro- ceedings. dissenting. I J., am agree
Baker, unable to with the 96 majority
opinion of the court. This is same of the recently before on certified constitutional us case which questions importance. Fowler, doubt and See State v. R. I. now here after a trial 79 16. case is superior court. opinion previous my filed from the
In dissent my of the of the section ordinance view I set out reasons opinion question. 11 of I of the that section am still city chapter of the Pawtucket the ordinances being August is unconstitutional as con- enacted trary pertinent provisions first fourteenth to the constitution of the United States. amendments they unnecessary readily can be to restate reasons from examination of the ascertained an above-mentioned I In the circumstances am dissent. adjudged guilty be
defendant should charged. should dis- dissenting opinion J., concurs of Mr. Capotosto, Baker. Justice Atty. Raymond Pettine, Powers, Gen., J. E. Ass’t
William Atty. for State. Gen., Hayden Coving- McGrane, Arabian, J. C. John
Aram A. Bar, York for defendant. ton, Newof E. et al. Sparne vs. Louis Altshuler Maude 12, 1952.
AUGUST Capotosto, Baker, Flynn, J., O’Connell, Condon C. JJ. Present: