Cole v. Chief of Police

45 N.E.2d 400, 312 Mass. 523, 1942 Mass. LEXIS 872

• Court: Massachusetts Supreme Judicial Court
• Decided: December 4, 1942
• Status: Published

Opinion

Ronan, J.

The plaintiff, a candidate for the office of representative in Congress from the Fourteenth Congressional District of Massachusetts, equipped an automobile and trailer, both registered in his name, with signs directing attention to the record of his opponent and informing the public that he was a candidate for the office. The trailer carried a large board, approximately fifteen feet long and seven feet wide, on each of the two faces of which was a sign attacking the public record of his opponent. The automobile bore a sign approximately four feet long and three feet high which announced the candidacy of the plaintiff and referred to his opponent as an ex-congressman. On the morning of May 30, 1942, while the automobile and trailer were being operated along a public street in Fall River by an agent of the plaintiff, the said agent was informed by the defendant Verville, a captain in the police department of Fall River, that he was violating the law and, subsequently, the defendant Violette, chief of police, informed the plaintiff that he intended to enforce against him an ordinance which provided that “No person shall operate or park a vehicle on any street or highway for the primary purpose of displaying advertising signs.” The plaintiff then filed this bill in equity against the chief of police, a police captain, the police board of the city of Fall River created by St. 1894, c. 351, and the mayor. The bill, with the consent of the parties, was dismissed as to the mayor. The remaining defendants intend to enforce the ordinance above mentioned and various other ordinances governing traffic on the streets of Fall River, and also the rules and regulations adopted by the State department of public works, division of highways, by virtue of G. L. (Ter. Ed.) c. 93, § 29, for the control and restriction of billboards, signs and other advertising devices. The plaintiff has appealed from a final decree dismissing the bill.

When the case was reached for argument in this court on November 10, 1942, it was properly represented by an affidavit filed by the defendants that the plaintiff had been defeated in the primary election of his party held on September 15, 1942, and that the successful candidate at this primary of the political party of which the plaintiff was a member was defeated at the election held on November 3, 1942, by the candidate of the opposing party. The plaintiff on the other hand has filed an affidavit stating that he intends to use upon the streets of Fall River in another political campaign this equipment with different messages upon it.

The aim of the bill is a permanent injunction, restraining the defendants from interfering with the operation of the plaintiff's automobile and trailer bearing the signs described in the bill upon the streets of Fall River. The occasion for the use of such signs has passed and there is now no actual controversy based upon any factual foundation existing between the parties. While there still may be a difference of opinion as to the validity of the ordinances in question, there is no longer any present clash of contending rights. Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy. United States v. Appalachian Electric Power Co. 311 U. S. 377. Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315 U. S. 740. This rule applies with special force where an adjudication is sought upon the constitutionality of some statute or ordinance as “it is almost the undeviating rule of the courts, both state and Federal — not to decide constitutional questions until the necessity for such decision arises in the record before the court.” Baker v. Grice, 169 U. S. 284, 292. Arkansas Fuel Oil Co. v. Louisiana, 304 U. S. 197. Southern Pacific Co. v. Gallagher, 306 U. S. 167. Lane v. Wilson, 307 U. S. 268. The possibility that the same issue might arise in the future and that it might be advantageous for the parties to have their rights determined in advance is not enough to call for the rendition of a judgment, which the future might show was of little practical value and merely settled a matter that had become no more than a theoretical dispute. The questions raised by the bill have become moot. Sullivan v. Secretary of the Commonwealth, 233 Mass. 543. Brown v. City Council of Cambridge, 289 Mass. 333. Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530. Nilsson v. Pearson, 301 Mass. 228. Simon v. Schwachman, 301 Mass. 573. Russell v. Secretary of the Commonwealth, 304 Mass. 181. Anderson v. Labor Relations Commission, 310 Mass. 590.

The final decree, in the opinion of a majority of the court, is to be modified by the insertion of a clause to the effect that the bill is dismissed on the ground that the questions raised have become moot, and the decree as so modified is affirmed with costs. Swampscott v. Knowlton Arms, Inc. 272 Mass. 475. Nilsson v. Pearson, 301 Mass. 228.

Ordered accordingly.