Posner v. Cooper

New York Supreme Court

Posner v. Cooper

194 Misc. 640, 83 N.Y.S.2d 460, 1948 N.Y. Misc. LEXIS 3369

CourtNew York Supreme Court

DecidedOctober 1, 1948

StatusPublished

Cited by4 cases

This text of 194 Misc. 640 (Posner v. Cooper) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Posner v. Cooper, 194 Misc. 640, 83 N.Y.S.2d 460, 1948 N.Y. Misc. LEXIS 3369 (N.Y. Super. Ct. 1948).

Pincite

Opinion

Davis, J.

The petitioner seeks, in a political campaign, to use a sound truck or loud-speaker on the streets of New Rochelle. A city ordinance provides for the issuance of a permit by the city manager, subject to certain regulations and the payment of $25 per day for such use. The contention is that the ordinance is unconstitutional. Though other authorities are cited, the petitioner relies, in the main, upon a recent divided decision in the United States Supreme Court in the case of Saia v. New York (334 U. S. 558). Despite certain general statements quoted in petitioner’s brief from the prevailing opinion, all that was actually decided in that case, in my judgment, was that the ordinance in question was unconstitutional and void by reason of the fact that it left the issuance of permission solely to the discretion of the chief of police and thereby curtailed the freedom of speech. It is to be noted in the Saia case (supra) the permission to use the -loud-speaker was refused by the chief of police.

The situation before me differs. The question here is academic because there has been no refusal upon the part of the city manager — in fact it affirmatively appears that the city manager has offered to grant such permit upon compliance with certain regulations designed unquestionably to protect the good health, well-being and privacy of the public. A fair interpretation of the ordinance, in this court’s view, is that it is mandatory upon the part of the city manager, upon such compliance, to issue such permission and, as far as the situation is presented, it has been so interpreted by the city authorities.

I hold the ordinance constitutional.

The petitioner further asserts that the amount of the fee is so large as to deprive the petitioner of the right of free speech. [642]*642There can be no doubt of the proposition that the city has the right to pass reasonable regulations and to charge a reasonable fee to enable the municipality to bear the financial burden of the enforcement of its regulations. Though the court might hold the opinion that a lower fee might be adequate, it cannot hold it so unreasonable as to seriously affect the right of free speech as compared with the right of peace, quiet and privacy.

Therefore, the petition in its entirety is denied. Settle order on notice at Special Term.

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Davis, J.

The petitioner seeks, in a political campaign, to use a sound truck or loud-speaker on the streets of New Rochelle. A city ordinance provides for the issuance of a permit by the city manager, subject to certain regulations and the payment of $25 per day for such use. The contention is that the ordinance is unconstitutional. Though other authorities are cited, the petitioner relies, in the main, upon a recent divided decision in the United States Supreme Court in the case of Saia v. New York (334 U. S. 558). Despite certain general statements quoted in petitioner’s brief from the prevailing opinion, all that was actually decided in that case, in my judgment, was that the ordinance in question was unconstitutional and void by reason of the fact that it left the issuance of permission solely to the discretion of the chief of police and thereby curtailed the freedom of speech. It is to be noted in the Saia case (supra) the permission to use the -loud-speaker was refused by the chief of police.

The situation before me differs. The question here is academic because there has been no refusal upon the part of the city manager — in fact it affirmatively appears that the city manager has offered to grant such permit upon compliance with certain regulations designed unquestionably to protect the good health, well-being and privacy of the public. A fair interpretation of the ordinance, in this court’s view, is that it is mandatory upon the part of the city manager, upon such compliance, to issue such permission and, as far as the situation is presented, it has been so interpreted by the city authorities.

I hold the ordinance constitutional.

The petitioner further asserts that the amount of the fee is so large as to deprive the petitioner of the right of free speech. [642]*642There can be no doubt of the proposition that the city has the right to pass reasonable regulations and to charge a reasonable fee to enable the municipality to bear the financial burden of the enforcement of its regulations. Though the court might hold the opinion that a lower fee might be adequate, it cannot hold it so unreasonable as to seriously affect the right of free speech as compared with the right of peace, quiet and privacy.

Therefore, the petition in its entirety is denied. Settle order on notice at Special Term.

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Bluebook (online)

194 Misc. 640, 83 N.Y.S.2d 460, 1948 N.Y. Misc. LEXIS 3369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/posner-v-cooper-nysupct-1948.

Opinion

I hold the ordinance constitutional.

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