State v. Frinks

201 S.E.2d 858, 284 N.C. 472, 1974 N.C. LEXIS 1277

• Court: Supreme Court of North Carolina
• Decided: January 25, 1974
• Docket: 84
• Status: Published

Opinion

BRANCH, Justice.

Defendant contends that Article VII of the Wilson City Code is a nullity because it contravenes his individual rights of assembly, petition and freedom of speech as guaranteed by the First Amendment to the Constitution of the United States and by Article I, Sec. 12 and Article I, Sec. 14 of the North Carolina Constitution and, therefore, the warrant charging him with the violation of that Article of the City Code should have been quashed.

He offers a three-pronged argument to support this contention.

His first and principal argument is that Article VII of the Wilson City Code fails to contain definite, objective criteria to guide the licensing authority in issuing or refusing to issue parade, permits.

At the threshold of our consideration of the questions here presented, we note the well-recognized rule that where a statute or ordinance is susceptible of two interpretations, one constitutional and one unconstitutional, the courts should adopt the interpretation resulting in a finding of constitutionality. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E. 2d 902; Finance Co. v. Leonard, 263 N.C. 167, 139 S.E. 2d 356; and Nesbitt v. Gill, 227 N.C. 174, 41 S.E. 2d 646.

We think that the law pertinent to decision of the question presented by defendant’s first argument is stated in the cases of Cox v. New Hampshire, 312 U.S. 569, 85 L.Ed. 1049, decided 31 March 1941 and Shuttlesworth v. Birmingham, 394 U.S. 147, 22 L.Ed. 2d 162, decided 10 March 1969.

In Cox v. New Hampshire, supra, the defendants were five Jehovah’s Witnesses who were convicted in the Municipal Court of Manchester, New Hampshire, for violation of a state statute prohibiting a parade without a special license.

The statute was silent as to the criteria governing the granting of permits, stating only:

“Any city may create a licensing board to consist of the person who is the active head of the police department, .the mayor of such city and one other person who shall be appointed by the city government, which board shall have delegated powers to investigate and decide the question of granting licenses under this chapter, and it may grant revocable blanket licenses to fraternal and other like organizations, to theatres and to undertakers.” New Hampshire, P. L. Chap. 145, § 3.

Upon defendants’ appeal to the New Hampshire Supreme Court, that court in refusing to overturn defendants’ conviction, construed the challenged ordinance to mandate a systematic, consistent and just manner of treatment with reference to the convenience of the public use of highways and to require the licensing board to exercise its discretion in granting or denying permits in a uniform and reasonable manner, free from improper considerations or unfair discrimination. The defendants appealed to the United States Supreme Court. In affirming the decision of the New Hampshire Supreme Court, Chief Justice Hughes, speaking for the Court, in part, stated:

“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. . . .”

* * *

“ ... As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Lovell v. Griffin, 303 US 444, 451, 82 L ed 949, 953, 58 S Ct 666; Hague v. Committee for Industrial Organization, 307 US 496, 515, 516, 83 L ed 1423, 1436, 1437, 59 S Ct 954; Schneider v. Irvington, 308 US 147, 160, 84 L ed 155, 164, 60 S Ct 146; Cantwell v. Connecticut, 310 US 296, 306, 307, 84 L ed 1213, 1219, 1220, 60 S Ct 900, 128 ALR 1352.”

Chief Justice Hughes then acknowledged the aid given to the U. S. Supreme Court by the construction of the statute by the New Hampshire Court and referring to that Court’s construction of the statute, stated:

“. . . the state court considered and defined the duty of the licensing authority and the rights of the appellants to a license for their parade, with regard only to considerations of time, place and manner so as to conserve the public convenience. The obvious advantage of requiring application for a permit was noted as giving the public authorities notice in advance so as to afford opportunity for proper policing. And the court further observed that, in fixing time and place, the license served ‘to prevent confusion by overlapping parades or processions, to secure convenient use of the streets by other travelers, and to minimize the risk of disorder. . . .’ ” (Emphasis added.)

The constitutionality of a city ordinance regulating the issuance of permits for a parade upon city streets was again considered by the United States Supreme Court in the case of Shuttlesworth v. Birmingham, supra. There, Shuttlesworth was convicted of violating a Birmingham, Alabama, ordinance making it an offense to participate in any “ ‘parade or procession or other public demonstration’ without first obtaining a permit from the City Commission.” The Birmingham ordinance, in part, provided:

“The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.”

The ordinance also required that the purpose for which the parade was to be held be set out in the written application.

• More than a week before the proposed march, Shuttles-worth sent a representative to apply for a parade permit. Commissioner Connor denied the representative’s request telling her, “No, you will not get a permit in Birmingham, Alabama, to picket. I will picket you over to the City Jail.” Two days later, Shuttlesworth requested by telegraph a permit to picket, to which Commissioner Connor replied, “I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.” Despite the denial of a permit, Shuttlesworth led a group of 52 people, two abreast in orderly fashion, some four blocks on a Birmingham street. The marchers did not interfere with pedestrians or block public streets. Shuttlesworth was arrested and upon trial was convicted of violating this ordinance.

The Alabama Court of Appeals reversed Shuttlesworth’s conviction, holding that the ordinance had been applied in a discriminatory fashion, and was unconstitutional in that it imposed an “invidious prior restraint” without providing ascertainable standards for the granting of permits. Shuttlesworth v. Birmingham, 43 Ala. App. 68, 180 So. 2d 114.

The Alabama Supreme Court construed the ordinance to authorize “no more than the objective and even-handed regulation of traffic on Birmingham streets” and reversed the Court of' Appeals. Shuttlesworth v. Birmingham, 281 Ala. 542, 206 So. 2d 348.

The United States Supreme Court granted certiorari. The Court held the ordinance as written and applied to be unconstitutional and reversed the Alabama Supreme Court.

In Shuttlesworth, the Supreme Court recognized the same pertinent principles of law enunciated in Cox, but refused to affirm Shuttlesworth’s conviction under the state court’s interpretation of the ordinance. The Shuttlesworth decision, however, did not reverse,- but distinguished Cox. In so doing the Court, after reviewing the relevant circumstances of the case before it inter alia, stated:

. . The petitioner was clearly given to understand that under no circumstances would he and his group be permitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place were selected that would minimize traffic problems. There is no indication whatever that the authorities considered themselves obligated — as the Alabama Supreme Court more than four years later said that they were — to issue a permit ‘if, after an investigation [they] found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.’

“This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was nothing to show ‘that the statute has been administered otherwise than in the . . . manner which the state court has construed it to require.’ Here, by contrast, .it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, ‘to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places.’ . . .”

Here the ordinance under attack is codified under the general heading of Traffic, and its language is directed to the time, place and manner of parades. It imposes no restraint upon speech concerning political matters or matters of public concern. Neither does it contain any inkling of discrmination against defendant or his associates.

The only provision possibly restrictive of expression precludes distribution of materials while riding in a parade. The enforcement of this provision of the ordinance might have an indirect effect on speech. However, this indirect effect is not fatal to the validity of the ordinance. The United States Supreme Court has held that when “speech” and “non-speech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. United States v. O’Brien, 391 U.S. 367, 20 L.Ed. 2d 672. There is an easily recognized relation to public health and safety in this portion of the ordinance since the distribution of materials would naturally result in (1) pedestrians, particularly children, crowding the streets in close proximity to moving vehicles, (2) an accumulation of trash and litter in the streets.

The regulation of the streets for the safety, comfort and convenience of the general public by this portion of the ordinance is such regulation as would justify an incidental limitation of constitutional rights.

We find that Cox controls the question under consideration. In Cox, the Supreme Court approved an ordinance which was completely void of criteria for issuing or denying a permit. The surrounding relevant circumstances in Cox and in instant case disclose a fair, non-discriminatory administration of the ordinance which did not contravene the rights of assembly or communication of thought. The only apparent distinction between the two cases is that the ordinance in the present case contained the broad language “health, welfare, safety and morals,” while the ordinance in Cox was without criteria to guide the local authorities in issuing or rejecting permits.

We recognize that the courts have condemned the use of the broad terms used in instant ordinance as a prior restraint on constitutional rights. Staub v. City of Baxley, 355 U.S. 313, 2 L.Ed. 2d 302; Shuttlesworth v. Birmingham, supra. Yet, we cannot perceive how the use of these broad terms in the Wilson ordinance would create a more invidious restraint: upon First Amendment freedoms than the ordinance in Cox which was devoid of guiding criteria.

Our Court of Appeals construed the ordinance to mean, “that the city manager and city council may only deny a. permit when the proposed parade, due to the time for which it is scheduled, its intended route, or the proposed manner of 'execution, irreconcilably conflicts with public safety and convenience.” Moreover, in the view of the Court of Appeals, “the ordinance required that in passing on the above considerations, a ,systematic, consistent and just procedure be adopted by city officials to insure that administrative action is free from improper or inappropriate consideration.” (Emphasis added.)

It is implicit in the holdings in Cox and Shuttlesworth that the construction of the challenged ordinance by the New Hampshire Court related back to the time of its passage. Thus, if the Court of Appeals correctly construed the Wilson ordinance, the language adopted in its construction has the same effect as if originally set forth in the ordinance.

We approve and adopt the construction of the Wilson ordinance by our Court of Appeals.

We therefore hold that, as construed by our Court of Appeals and this Court, Article VII of the Wilson City code contains sufficiently definite, objective criteria to guide the licensing authority in issuing or refusing to issue parade permits.

Defendant next argues that Article VII of the Wilson City Code impermissibly burdens his First Amendment rights by requiring that in case of an appeal to the City Council from denial of a permit, “the applicant shall have the burden of proof of showing that the proposed parade will not be contrary to the health, welfare, safety and morals of the city.” In support of this contention, defendant cites Freedman v. Maryland, 380 U.S. 51, 13 L.Ed. 2d 649 and Speiser v. Randall, 357 U.S. 513, 2 L.Ed. 2d 1460.

In Freedman, the Court held that a Maryland motion-picture censorship statute making it .unlawful to exhibit a motion picture without having first obtained a license was unconstitutional. The Court held that the statute violated the guaranty of freedom of expression, among other reasons, because upon the censor’s disapproval the exhibitor was forced to assume the burden of instituting judicial proceedings and of persuading the court that the film was protected expression.

In Speiser, appellants were veterans who claimed the veteran’s property tax exemption provided for by the California Constitution. The California legislature enacted a statute requiring an applicant for the tax exemption to complete a loyalty oath as a condition for his application. Appellants refused to sign such an oath and were denied the tax exemption. The Court held that when the constitutional right to speech is sought to be deterred by a State’s general taxing power, due process demands that speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.

The case before us is clearly distinguishable from Freedr man and Speiser. In both Freedman and Speiser, the Legislature purported to directly restrict First Amendment rights. Here, under our construction of Article VII of the Wilson City Code, there is no intent to curb First Amendment rights. In Speiser and Freedman, the ordinances there considered did not purport to regulate the streets for the safety, comfort or convenience of the general public. In this case, the ordinance under attack is a traffic ordinance which requires a systematic, competent non-discrminatory administration of its provisions.

The State has the power to regulate procedures under which its laws are to be carried out, including placing the burden of producing evidence and the burden of persuasion, unless in so doing it offends some principle of justice deeply rooted in the traditions and conscience of our people. Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed. 674. Defendant Frinks was not required to state the purpose of his parade. He was not required to convince the City Council that his proposed parade constituted protected expression. Rather, the sole issue upon which he had the burden of proof is whether the proposed parade would interfere with traffic, public safety, and the public convenience.

We, therefore, hold that the ordinance does not place an impermissible burden on defendant to justify the exercise of his First Amendment freedoms.

Finally, defendant attacks the ordinance on the ground that it fails to insure a prompt review in the event the City Manager should deny an application for a parade permit. Defendant cites and relies upon Freedman v. Maryland, supra, and Shuttlesworth v. Birmingham, supra, for the proposition that there must be provision for prompt review of any denial of permits or licenses involving an applicant’s First Amendment rights. The holdings in these cases are bottomed on First Amendment rights. The Wilson Ordinance, as we have construed it, does not violate an applicant’s First Amendment rights. Thus the recognition by Freedman and Shuttlesworth of extraordinary urgency for prompt review of questions involving the First Amendment guarantees does not exist in this case.

Moreover, it should be borne in mind that in construing this ordinance we may draw reasonable inferences and consider proper implications to the end that the ordinance may be declared valid. In so doing, we are guided by the rule that when a duty is imposed upon a public agency there arises, of necessity, an implication that adequate power is bestowed upon the agency to perform the duty in accord with the federal and state constitutions. Hill v. Lenoir County, 176 N.C. 572, 97 S.E. 498; Lowery v. School Trustees, 140 N.C. 33, 52 S.E. 267.

We consider it proper to infer that when there is an appeal from the decision of the City Manager, the provisions of the ordinance under consideration require the City Council, within a reasonable time, to conduct a hearing, review the decision of the City Manager, and uphold or reverse such decision.

The inferences and implications which we draw from the language of this ordinance are buttressed by the action of the Wilson City Council in hearing and ruling on the denial of an earlier application for a parade permit on the same day defendant requested a hearing.

There is ample provision for review by the City Council within a reasonable time and thereafter an applicant for a parade permit has ready access to the North Carolina General Court of Justice through regular and recognized procedures.

The local government’s control of its streets pursuant to the provisions of Article VII was not exercised so as to deny or unreasonably abridge defendant’s First Amendment freedoms.

We hold the ordinance to be valid under both the Federal and the North Carolina Constitutions.

The decision of the Court of Appeals is

Affirmed.