Harwood v. Trembley , 12 Gummere 173 ( 1922 )

The opinion of the court was delivered by

Gummere, Chief Justice.

Harwood, the plaintiff below, brought this suit to recover damages for an assault alleged to have been illegally committed upon Mm by the defendants on May 31st, 1919, at the city of Rahway, in this state. The trial resulted in a verdict for the defendants, and the plaintiff has appealed' from the judgment entered thereon.

The material facts upon which the respective rights of the parties to the litigation depend are, briefly, as follows: The plaintiff, who was acting state secretary for the Socialist party, had arranged for the holding of a public meeting in one of the city'- streets of Rahway, near the business centre thereof. • The city commissioners, having been applied to by members of the Socialist party for a permit to hold this meeting, after due consideration denied the application. Having been informed of this fact, the plaintiff personally attended the next meeting held by the commission and renewed the application. He was again informed that the meeting would not be permitted, and thereupon stated that he would hold the meeting anyway, and make a legal test of the question of his right to do so. The time óf the meeting had been fixed for May 31st, 1919, at eight o’clock in the evening. Trembley, one of the defendants, who was the mayor of the city and the head of its police department, fearing that if the meeting was held’ a riot might ensue, because of the fact that there was at the Colonia hospital, which was just outside of the city of Rahway, a large number of soldiers who had returned from overseas after the armistice, and whose views with relation to the propriety of the world war were likely to be out of harmony with those which would probably be expressed by the plaintiff in his address, determined to prevent the threatened meeting from being held. Realizing that the police force of the city, which consisted of twelve members, was hardly large enough to handle a riot, in case one should occur, he sent for Mohr, the other defendant, who is the chief of the fire department, and, after some discussion of the situation with him, instructed him to have a fire engine located near the place at which the meeting was intended to be held, and, if the appellant attempted to speak, to turn the hose on Mm. In accordance with these instructions, the chief, just prior to the time fixed for the meeting, had a fire engine placed within a block of the street corner where the proposed meeting was intended h> be held and attached this engine to a fire plug. At eight o’clock tlie appellant arrived, with some of. Ms associates, erected a movable platform at the street corner and started to address a crowd of some seven or eight hundred people who had gathered there. He had only spoken a few words when. Mohr, at a signal from the mayor, had the water turned on from the lire plug and directed the stream from the hose upon the appellant, washing him from' the platform, wetting those in the immediate neighborhood thereof, and by so doing dispersed the meeting. It was this action on the paid of the mayor and the chief of the fire department that constituted the assault upon which the appellant rests his claim for damages.

At the close of the testimony submitted in the causo plaintiff’s counsel moved that the court direct the- jury to Mid a verdict in favor of the plaintiff, leaving to it only the question of damages. This motion was denied,. Counsel then requested the court to charge, the jury that, under the evidence in the case, the respondents were not justified in using force of any kind. This request was refused. The only questions upon which the present appeal is rested are whether the motion to direct a verdict and the request to charge were, either of them, improperly denied.

The streets of a city are common highways, primarily designed for the usa of the public in passing and repassing and in such temporary occupancy as is incidental to the exercise of those rights. fsTo one is justified in obstructing a public street by collecting therein a large assemblage of people for the purpose of delivering an address to them. The common highways of the state are not designed for the purpose of holding public meetings therein, and anyone who attempts to do this, without having first obtained permission from the public authorities in charge of such highways, commits a public nuisance. The constitutional guaranty of liberty of speech no more authorizes a citizen to appropriate to his own use the public property of a community for the purpose of exercising that guaranty than it permits him to occupy in invitumi the private property of a fellow citizen for the same purpose. In order to protect the public in the full enjojunent of the city streets, the municipal authorities are clothed with the power of seeing that such enjoyment is not unnecessarily interfered with; and, in the exercise of that power, to take all reasonable steps to prevent such interference. In the present case the respondent Trembley, as has already been stated, was the mayor of the city of Rahway, and the head of its police department, and upon him rested the duty of seeing to it that the appellant was not permitted to obstruct public travel or in any other way interfere with the rights of the public by holding his proposed meeting in one of the city streets; and in the performance of this duty he was justified in using such means as were reasonably appropriate to its accomplishment, providing excessive force was not employed. The chief of the fire department, the other defendant, by virtue of the office which he held, was subject to the orders of the mayor, providing those orders were not outside the scope of the mayor’s powers. • In this situation the question whether the mayor had used proper means -to prevent the intended illegal infringement of the rights of the public or whether his action, under the circumstances, was without legal justification, was a question of fact to be determined' by the jury, and not one of law to be resolved by the court. And what is true with relation to the action of the mayor is also true with relation to the act of the chief of the fixe department in carrying out the mayor’s instructions. This being so, the court properly refused to direct a verdict in favor of the plaintiff on the question of liability.

As to the request that the jury be instructed that the respondents were not legally justified in using force of any kind, it was legally refused, for the reason already indicated. It may he added that the request was too broad, for the reason that, even if the course actually taken by the mayor and the chief of the fire department was without legal justification, nevertheless they were fully authorized to use such force as was reasonably necessary to prevent the appellant from violating the law.

The judgment under review will he affirmed..