Hague v. Committee for Industrial Organization

DAVIS, Circuit Judge

(dissenting in part).

It is with regret that I feel constrained to dissent in part from the conclusions of my colleagues.

The first conclusion from which I dissent is that of the question presented by this appeal. They say that it is “whether or not certain fundamental civil liberties safeguarded by the Constitution of the United States shall be observed and protected in Jersey City or shall there stand abridged”. This statement “begs the question”. It assumes that what the defendants, speaking of the parties as they stood in the District Court, did in Jersey City constituted an abridgment of these “fundamental civil liberties” and the only question would then be whether or not they should stand abridged in Jersey City and not elsewhere. The mere statement of that question answers itself. The question, as I see it, is whether or not what the defendants did in Jersey City deprived the plaintiffs of any rights to which they were entitled under the Constitution of the United States. The answer to this question depends upon two further questions.

The first one is whether or not the ordinance, pursuant to which the permits were denied, is constitutional and if it is, the second question is whether or not the Director of Public Safety in denying the permits abused the discretion and authority which the ordinance vests in him.

The decree is divided into two parts: A., “Liberty of the Person”, and B., “Liberty of the Mind”. The substance of the restraints contained in the decree follows:

Under A., the Court enjoined the defendants :

1. From excluding or removing the plaintiffs, which includes in this decree, their agents, servants, employees and persons acting in sympathy and concert with them, from Jersey City;

2. From exercising any personal restraint over the plaintiffs except so far as such restraint is in accordance with any right of search and seizure and any right of arrest and removal as speedily as is reasonably possible before a judicial officer under existing law, and

3. From interfering with plaintiffs in their right of free access to and locomotion on the public streets, highways, thoroughfares, parks and places of Jersey City except in so far as such interference is in accordance with any right of search and seizure, etc. as stated in No. “2” above.

There is no serious objection, as I understand it, to this part of the decree if it is construed not to interfere with what is generally accepted everywhere as legitimate work of police officers and detectives.

Under B., the court enjoined the defendants :

1. From interfering with the plaintiffs in their right to communicate their thoughts to other persons in and about the public streets, highways, thoroughfares, parks and *798 places of Jersey City except in so far as such interference is in accordance with any right of search and seizure, etc. as stated above, except that this paragraph has no bearing upon the right of the plaintiffs to speak at public meetings;

2. From interfering with the plaintiffs in the circulation or distribution by them in the public streets, etc. of Jersey City of pamphlets, circulars, handbills, or any written or printed matter whatsoever; provided that the circulars, pamphlets, etc., are in no respect “obscene, offense to pubic morals or an advocacy of unlawful conduct” and “that their distribution is carried out in a manner consistent with the maintenance of public order and not involving disorderly conduct, the molestation of the inhabitants or the misuse or littering of the streets * * * ”;

3. From' interfering with the plaintiffs' in carrying or displaying on the public streets, etc., of Jersey City placards, signs or any written or printed matter whatsoever; provided such matter is not obscene or against public morals and that the carrying of the placards is orderly and without molestation to the inhabitants of Jersey City and without littering the streets, etc.

The decree is in these three respects, under “B.”, proper and there is no real objection so far to it. The léarned trial judge devoted only a .small part of his opinion to the decree up to this point. The real contest in this case is concerned with B. 4. (a), (b), (c) and (d) in which the court enjoined the defendants as follows :

“4. Public Meetings:

“(a) From placing any previous restraint upon or in any other manner whatsoever directly or indirectly interfering with the plaintiffs or any of them in respect to the holding- of meetings or assemblies in the open air and in parks dedicated for the purposes of the general recreation of the public provided that an application for a permit to hold such meetings by or on behalf of'said plaintiffs or any of them has been made three days in advance of such meetings and provided further that such permit may be refused these plaintiffs or any of them only for the reason that the particular time or place designated in the application is in reasonable conflict with the public recreational purposes of said parks.

“(b) From refusing to or withholding from the .said plaintiffs or any of them applications for said permits as herein-above provided such protection at said meetings or assemblies as- is necessary to secure to said plaintiffs or any of them the opportunity to hold such meetings without interference from or interruption by such persons as may be present at said meetings provided only that such protection is reasonably consistent with the ability of the defendants to carry out their obligations in regard to the safety of the residents of Jersey City and provided further that the duty of the defendants to afford such protection to the holding of such meetings or assemblies as may be necessary for their peaceful continuance may be terminated by words or conduct of the plaintiffs or any of them in violation of existing law.

“(c) From continuing their heretofore expressed refusal to grant permits to Congressman Maverick, Congressman O’Connell, Congressman Allen and Morris L. Ernst, and Congressman O’Connell, Roger N. Baldwin, William J. Carney, A1 Barkin, Sam Macri and John Kiesler upon applications dated December 17 and 23, 1937, respectively, and from continuation of their heretofore expressed refusal to grant those said named speakers all the rights set forth in the preceding two paragraphs of this decree for injunction.

“(d) From refusing to the plaintiffs or any of them the rights set forth in the three preceding paragraphs of this decree for injunction in so far as such rights may be sought with respect to public meetings on any of the public streets, highways, thoroughfares or places of the City of Jersey City (other than public parks) and unless and until the defendants acting in their official capacities adopt and enforce the deliberate policy of forbidding meetings of any kind on any of the public streets, highways, thoroughfares or places of the City of Jersey City provided that the rights of the plaintiffs or any of them to hold meetings on the public Streets, highways, thoroughfares or places of the City of Jersey .City be held subject to a reasonable interpretation by the defendants of the acknowledged easement of public passage over any of the said public streets, highways, thoroughfares or places of the City of Jersey City.”

*799 The ordinance 5 and the .so-called “Home Rule” statute of New Jersey, R.S. N.J.1937, 40:42 — 1 et seq., pursuant to which the ordinance was passed, are grounded upon the assumption that the streets and parks of Jersey City belong exclusively to the state and it or the city, in so far as it has been authorized by the state to do so, may say whether or not parades or public meetings may be held on the streets or in the, parks and under what conditions. That Jersey City has such authority has been settled in the courts of New Jersey, of Massachusetts, of Pennsylvania, of Illinois and oí other states, and in the federal courts.

In Inhabitants of City of Burlington v. Pennsylvania R. Co., 56 N.J.Eq. 259, 261, 38 A. 849, 850 , the court said:

“It is, of course, true that the public rights, so far as it is concerned, is subject to the legislative control over streets. As to the public, the legislature can authorize the abandonment of a street in toto, or turn it in part over to a private enterprise. It may therefore legalize the operation of a steam railroad transversely or longitudinally over or along a highway. The legislative authority, however, must appear, either in express terms, or must flow as a necessary implication from powers expressly granted. State v. Warren Railroad Co., 29 N.J.L. 353 [5 Dutch. 353] ; Newark v. Delaware, Lackawanna and Western Railroad Co., 42 N.J.Eq. 196 [ 15 Stew. 196 ], 7 A. 123 ; Hoboken Land & Improvement Co. v. Hoboken, 35 N.J.L. 205 [ 6 Vroom 205 ], The grant of power may be made directly by the legislature, or it may be delegated to the government of a municipality. It may be contained in the charter of a city, in the charter of a railroad, or' in a general statute.”

In Harwood v. Trembly, 97 N.J.L. 173, 175 , 116 A. 430, 431 , Chief Justice Gummere declared the law as follows:

“The streets of a city are common highways, primarily designed for .the use of the public in passing and repassing and in such temporary occupancy as is incidental to the exercise of those rights. No 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 any one 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 invitum the private property of a fellow citizen for the same purpose. In order to protect the public in the full enjoyment 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 interferences.”

In the case of Thomas v. Casey, 121 N.J.L. 185 , 1 A.2d 866, 870 , Mr. Justice Bodine, in an able and well-reasoned opinion said:

“He [Thomas] has no more right to speak in public places in that city, such as highways and parks, without permit than he has to invade a citizen’s home without invitation.”

In Commonwealth v. Davis, 162 Mass. 510 , 39 N.E. 113 , 26 L.R.A. 712 , 44 Am. St.Rep. 389, in which Davis spoke on the *800 Boston Common without a permit in violation of a city ordinance, Mr. Justice Holmes said:

“There is no evidence before us to show that the power of the legislature over the common is less than its power over any other park dedicated to the use of the public, or over public streets, the legal title to which is in a city or town. Lincoln v. Boston, 148 Mass. 578, 580 , 20 N.E. 329 [ 3 L.R.A. 257 , 12 Am.St.Rep. 601 ]. As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the.owner of a private house to forbid it in his house.”

In reviewing that case (Davis v. Massachusetts, 167 U.S. 43 , 17 S.Ct. 731, 733 , 42 L.Ed. 71 ) hereinafter called the Davis case, on appeal to the Supreme Court of the United States, Mr. Justice White affirmed the Massachusetts court as follows:

“It is therefore conclusively determined that there was no right in the plaintiff in error to use the common except in such mode and subj ect to such regulations as the legislature, in its wisdom, may have deemed proper to prescribe. The fourteenth amendment to the constitution of the United States [U.S.C.A.] does not destroy the power of the states to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U.S. 27, 31 , 5 S.Ct. 357 [ 28 L.Ed. 923 ]; Minneapolis 6 St. Louis Railway Co. v. Beckwith, 129 U.S. 26, 29 , 9 S.Ct. 207 [ 32 L.Ed. 585 ]; Giozza v. Tiernan, 148 U.S. 657 , 13 S.Ct. 721 [ 37 L.Ed. 599 ]; Jones v. Brim, 165 U.S. [180], 182, 17 S.Ct. 282 [ 41 L.Ed. 677 ]), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state.

* * * * *

“The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser. The finding of the court of last resort of the state of Massachusetts, being that no particular right was possessed by the plaintiff in error to the use of the common, is in reason, therefore, conclusive of the controversy which the record presents, entirely aside from the fact that the power conferred upon the chief executive officer of the city of Boston by the ordinance in question may be fairly claimed to be a mere administrative function vested in 'the mayor in order to effectuate the purpose for which the common was- maintained and by which its use was regulated.”

This case has been followed in many inferior federal courts. Mutual Film Co. v. Industrial Commission of Ohio, D.C., 215 F. 138 ; Lutz v. City of New Orleans, D.C., 235 F. 978 ; Community Chautauquas v. Caverly, D.C., 244 F. 893 ; Lane v. Whitaker, D.C., 275 F. 476 ; Buck v. Kuykendall, D.C., 295 F. 197 ; Capital Taxicab Co. v. Cermak, D.C., 60 F.2d 608 ; Sullivan v. Shaw, D.C., 6 F.Supp. 112 .

The specific point here presented was absolutely settled in the Davis case and if the law there declared is still the law, it is conclusive of the issues here involved and the District Court and this court have overruled the Supreme Court. This they both seek to avoid in two ways:

They say that the case at bar can be distinguished from the Davis case and that in any event the Supreme Court in later cases has “modified” the law there announced.

They seek to distinguish this case from the Davis case by the fact that in that case no application was made for a permit, but in this case there was. This is a “distinction without a difference”. The Supreme Court thought so little of ,the fact that no application was made in the Davis case that it did not even mention that fact, but discussed the questions on their merits and declared the law. If the ordinance in the Davis case was void, it was void On its face and Davis with or without an application was entitled to test its validity, Lovell v. Griffin, 303 U.S. 444, 552 , 58 S.Ct. 666 , 82 L.Ed. 949 , and this he did.

The attempted distinction does not avoid the difficulty which this court had in trying to get around the Davis case and so it says that the law declared in that case has been “modified” in later decisions of the Supreme Court. The majority opinion shows that by “modified” is meant changed, overruled. The opinion in the Davis case was delivered more *801 than forty years ago and no other court has found that the law has been “modified” or in any way changed, but every court, state and federal, which has considered the identical question sub judice has relied upon that case for the law there announced.

This court says that the Davis case has been “modified” by the cases of Gitlow v. New York, 268 U.S. 652 , 45 S.Ct. 625 , 69 L.Ed. 1138 ; Fiske v. Kansas, 274 U.S. 380 , 47 S.Ct. 655 , 71 L.Ed. 1108 ; De Jonge v. Oregon, 299 U.S. 353 , 57 S.Ct. 255 , 81 L.Ed. 278 ; Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625 , 75 L.Ed. 1357 ; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666 , 82 L.Ed. 949 . A case is “modified”, changed or overruled expressly or by necessary implication.

There is not a line, word or even a hint, in those cases expressly modifying, changing or overruling the Davis case and I do not think that they have done so by necessary implication.

To repeal a statute or overrule a decision by implication is an unpopular doctrine and it is not usually done. The recent references to the Davis case by the Supreme Court indicate that the law as there laid down still stands and has not been “modified”. Packard v. Banton, 264 U.S. 140, 145 , 44 S.Ct. 257 , 68 L.Ed. 596 ; Chicago Title & Trust Co. v. Wilcox Building Corporation, 302 U.S. 120, 128, 58 S.Ct. 125 , 82 L.Ed. 147 . It is true that the issue in these cases was not abridgment of the freedom of speech, but the Davis case was cited as authority for the law they were declaring without a hint or an implication that the doctrine of that case had been “modified”.

In the Gitlow case, Gitlow was indicted, tried and convicted for criminal anarchy which advocates the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or executive officials thereof. The defendant contended that the statute against criminal anarchy was in contravention of the due process clause of the Fourteenth Amendment. The Supreme Court affirmed the judgment and' in its opinion said:

“That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has en-kindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction ; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. In People v. Lloyd, supra, [ 304 Ill. 23 ], p. 35 (136 N.E. [505], 512), it was aptly said: ‘Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be‘neither prosecuting officers nor courts for the enforcement of the law.’

“We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing "the freedom of speech or press; and we must and do sustain its constitutionality.” [ 268 U.S. 652 , 45 S.Ct. 631 ].

The judgment of conviction was affirmed and instead of modifying the law of the Davis case, this case rather affirms it.

Fiske v. Kansas, 274 U.S. 380, 387 , 47 S.Ct. 655, 657 , 71 L.Ed. 1108 , was a case in which Fiske was indicted, tried, convicted and sentenced for violating the stat *802 ute of Kansas against Criminal Syndicalism which is defined as the doctrine that advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods as a means of effecting industrial or political' ends, or as a means of effecting political revolution.

All that was proved against Fiske was that he solicited and secured members in an organization which it was charged violated the Crimiúal Syndicalism Act, Laws Kan. 1920, Sp.Sess., c. 37. The court said:

“The result is that the Syndicalism Act has been applied in this case to sustain the conviction of the defendant, without any charge or evidence that the organization in which he secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political changes or revolution. Thus applied the Act is an arbitrary and unreasonable exercise of the police power of the State, unwarrantably infringing the liberty of the defendant in violation of the" due process clause of the Fourteenth Amendment. [U.S.C.A Const.]

In other words, Fiske was convicted without any' evidence whatever to establish the crime of which he was charged and convicted. It was held that this violated the due process clause of the Fourteenth Amendment.

Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625, 626 , 75 L.Ed. 1357 , involved a suit to suppress a newspaper for criticising certain public officials for the alleged prevalence and protection of crime, on the ground that the criticism was “malicious, scandalous and defamatory”. The court held that under the circumstances of that case previous restraint of publications, was an infringement of the liberty of the press guaranteed by the Fourteenth Amendment, but the libeler remained civilly and criminally responsible for his libel.

In the case of De Jonge v. Oregon, 299 U.S. 353 , 57 S.Ct. 255, 260 , 81 L.Ed. 278 , Dejonge was indicted, tried and convicted for violating the Criminal Syndicalism Law of Oregon for assisting in the conduct of a meeting which was called “under the auspices of the Communist Party, an organization advocating criminal syndicalism.”

At the trial Dejonge moved for the direction of acquittal on the ground that the statute as applied’ to him for merely assisting at a meeting of the Communist Party at which nothing unlawful was done or advocated, violated the due process clause of the Fourteenth Amendment. The motion was denied and he was convicted.

The offense for which Dejonge was convicted and sentenced to imprisonment for seven years was assisting in the conduct of a meeting which was orderly and in which no unlawful act was advocated or cqmmitted. His apparent, sole offense was that he took part in a meeting held under the auspices of the Communist Party.

On appeal, the Supreme Court said:

“It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.”

In Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666, 669 , 82 L.Ed. 949 , Alma Lovell was convicted in the Recorder’s Court of the City of Griffin, Georgia, and was sentenced to imprisonment for fifty days in default of the payment of a fine of fifty dollars for distributing a pamphlet and magazine in the nature of religious tracts without securing a permit, in violation of a city ordinance which provided that the distribution of circulars, handbooks, advertising, or any other kind of literature without first obtaining written permission from the City Manager was a nuisance and punishable as an offense against the City. The Superior Court of the County refused a review and the Supreme Court of Georgia denied an application for certiorari.

There was no restriction in the application of the ordinance with respect to time and .place. “It .is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.” The court held that, “Whatever the motive which induced its adoption, its character is such *803 that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship”.

The cases of Near v. Minnesota, supra, De Jonge v. Oregon, supra, and Lovell v. Griffin, supra, more nearly resemble the case at bar than any of the others. The contentions made in them were direct challenges .to the rights safeguarded and guaranteed by the Fourteenth Amendment and the conclusions reached by the Supreme Court were inevitable. The Minnesota case was a plain attempt to suppress a newspaper because it criticised public officers for alleged protection of corruption. The De Jonge case was nothing more than an attempt to punish a citizen by imprisonment for seven years for assisting in the conduct of a peaceful, orderly and lawful meeting held under the auspices of the Communist Party. The Lovell case was an attempt to punish a person for distributing religious tracts which set forth the tenets of her faith.

These cases and the statutes or ordinances, under which they "were brought are a long way from the case at bar. The ordinance here under consideration was passed for self protection and self preservation. As Mr. Justice Sanford, quoting from the case of Mugler v. Kansas, 123 U.S. 623 , 8 S.Ct. 273 , 31 L.Ed. 205 , said in the Gitlow case, “the State is primarily the judge of regulations required in the interest of public safety and welfare”. The passage of the ordinance by Jersey City was state action, Lovell v. Griffin, supra, and its adoption was the promulgation of regulations which the state of New Jersey judged to be required in the interest of the public safety and welfare of its people. It was adopted for the express purpose of preventing riots, disturbances and disorderly assemblage and this the city and state had the right to do. The right of self-preservation is an inherent function of government. “In maintaining this guaranty [of the fundamental rights of person and property] the authority of the State to enact laws to promote the health, safety, morals, and general welfare of its people is necessarily admitted.” Near v. Minnesota, supra. Any interference with freedom of speech or of the press was incidental. As Chief Justice Hughes said in the De Jonge case, if the rights of free speech and peaceable assembly are to be preserved, the question is not as to the auspices under which a meeting is held, but as to its purpose. No case has been cited holding that an ordinance passed for the safety, protection and welfare of a city, when properly administered, is unconstitutional. The cases upon which the majority opinion rests for a modification of the law declared in the Davis case, do not even mention that case. In the De Jonge case, the Chief Justice said: “None of our decisions go to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application”. The decision in the Davis case must be included in “our decisions” mentioned in the De Jonge case. Accordingly when the Jersey City ordinance is properly applied, it does not curtail the right of free speech and free assembly within the meaning of the Constitution of the United States and the decisions of the Supreme Court

The next question is whether or not the Director of Public Safety of Jersey City abused the authority vested in him by the ordinance in denying permits to the plaintiffs. In order to determine this question it is necessary to know and consider at least some of the facts and circumstances surrounding his refusal. Of course, he must fairly investigate all the facts and circumstances pertinent to an application and must honestly “believe it to be proper to refuse the issuance” of a permit “for the purpose of preventing riots, disturbances or disorderly assemblage” or some of them. The facts and circumstances must be sufficient to enable a reasonable man to come to that belief before he may refuse.

The plaintiffs informed the Director that Roger N. Baldwin, among others, was to speak at the meeting for which they sought a permit. Their application had been given wide publicity and a great deal of agitation and excitement had arisen over this and the proposed “invasion” of Jersey City by the plaintiffs and others who were associated with them. Thereupon the following letter was written to the Director:

“Committee of Veterans of Jersey City

“921 Bergen Avenue,

“Jersey City, N. J. December 27, 1937 “Hon. Daniel Casey, Department of Public

Safety, Jersey City, N. J.

“Dear Commissioner: We understand from the newspapers that there is pending *804 before you. now an application for a permit to hold an open air public meeting in this City.

“Among the speakers listed for the meeting is one Roger N. Baldwin, whose record was published in this afternoon’s newspapers. In that record we find a conviction by a United States Court for draft dodging and a prison sentence of one year in the Essex County Penitentiary. We consider any man convicted of this crime to be thoroughly Un-American in his principles and unworthy of receiving any consideration at the hands of the City Officials, at least to the extent of granting him permission to speak in this City at a public meeting.

“We hereby protest against the granting of the permit to Roger N. Baldwin, or to any members of the Un-American group he represents, irrespective of what they claim to be the purpose of their meeting. We demand 'that you withhold action on this application.

“The reason for requesting delay is that we wish to assemble in a body at the Jersey City Armory on Tuesday, tomorrow evening, in order that we may prepare and have adopted by the full membership of all the Veterans’ Organizations in Jersey City, resolutions of protest against allowing this ‘slacker’ or any of his type, to appear publicly in Jersey City, whose citizens are devoted to American principles and the upholding of our American Constitution.

“Please give us a prompt answer to this letter.

“Very truly yours,

“Charles A. Peterson

“Past State Commander V. F. W.

“William E. Malinka

“American Legion

“George A. Reilly

“Adjutant, Jersey City Post A. L.

“Davis N. Nimmo

“Past Commander, Hudson County, Amer. Legion

“Louis F. J. Borgers

“Commander, Quinn Post, American Legion

“Hugh A. Kelly

“Commander, Jersey City Post, Amer. Legion.”

More than three thousand veterans of Jersey City met the next day, December 28, 1937, and passed a resolution which they sent to the Director. Among those present were representatives of the American Legion, Veterans of Foreign Wars, Catholic War Veterans, Jewish War Veterans, Irish War Veterans, Polish American War Veterans, Italian War Veterans, Disabled War Veterans, Reserve Officers Association, Marine Corps League, Veterans of Three Wars, United Spanish American War Veterans.

The resolution reads in part as follows :

“Whereas, in his testimony before the Fish Congressional Committee he (Roger N. Baldwin) did testify that force, violence and murder may be resorted to for the overthrow of government, his testimony being as follows:

“The Chairman: Does your organization uphold the right of a citizen or alien — it does not make any difference which — to advocate murder?

“Mr. Baldwin: Yes.

“The Chairman: Or assassination?

“Mr. Baldwin: Yes.

“The Chairman: Does your organization uphold the right of an American citizen to advocate force and violence for the overthrow of the Government?

“Mr. Baldwin: Certainly, in so far as mere advocacy is concerned.

“The Chairman: Does it uphold the right of an alien in this country to urge the overthrow and advocate the overthrow of the government by force and violence?

“Mr. Baldwin: Precisely on the same basis as any citizen.

“The Chairman: You do uphold the right of an alien to advocate the overthrow of the government by force and violence ?

“Mr. Baldwin: Sure; certainly. It is the healthiest kind of thing for a country, of course, to have free speech — unlimited.

“Whereas, the same Roger N. Baldwin is now the leading advocate of the C. I. O. movement; and

“Whereas, the C. I. O., in permitting this man to be its spokesman stands accused of condoning his Un-Americanism and Communistic leanings, and the C. I. O. should be condemned for its Un-American tactics, * * *

* * * * # *

“Now, Therefore, Be it

“Resolved that we request th'e said Daniel Casey, Director of Public Safety, to refuse and deny the application made for such a permit, and be it Further

*805 “Resolved, that we now record our firm opposition and protest against allowing this slacker and his Communistic associates to appear publicly in Jersey City,-whose citizens are devoted to American principles and the upholding of our American traditions, and be it Further

“Resolved, that we consider a man convicted of the crime of evading the draft to be thoroughly Un-American in his principles and unworthy of receiving any consideration at the hands of public officials, especially the right to speak from a public platform in the streets of Jersey City, and that we also consider that any organization which permits this man to be associated with them is also unworthy of any consideration on the part of public officials and they should not be given the right to use our public streets for the purpose of spreading Communistic and Un-American doctrines * * *

Local unions affiliated with the American Federation of Labor and many others sent additional protests to the Director.

The plaintiffs had been trying for sometime to secure permits to hold public meetings in Jersey City at which Norman Thomas, Roger N. Baldwin and others were to speak. Many newspapers circulated in Jersey City contained statements of an intended “invasion” of Jersey City by the C. I. O. For instance, the following appeared in the Newark Evening News, the largest newspaper in New Jersey and one of the most reliable in the country:

“CIO Prepared For Invasion

Mass Drive by 3,000 to Be Launched Monday in Jersey City

“Final plans for their invasion of Jersey City were completed last night by New Jersey CIO leaders. A mass organization drive by 3,000 CIO representatives will be launched Monday afternoon as workers leave plants in the downtown area of the city.

“Aside from field organizers of international unions, more than 28,000 volunteers will distribute leaflets in an area bounded by Bay and 17th Streets, Jersey City. Of that number more than 2,000 will be from the International Maritime Union.

“Other -organizations which will send groups include the Civil Liberties Union, International Labor Defense, Workers Defense League and the Hudson County Committee for Civil Rights.

“Many Arrests Expected.

“Those participating in the drive will assemble in Jersey City at a given point. They will then march to the city’s largest plants where leaflets will be handed out. Many arrests are expected in view of the city’s ordinance prohibiting distribution of leaflets.

“William J. Carney, CIO regional director and leader of the drive, will go to Washington tomorrow to confer with a member of the Senate Civil Liberties Committee. Carney said a member of the committee will be in Jersey City Monday as an observer.

“Showdown with Hague.”

Carney added:

“Our plans for a showdown between CIO and I-Am-The-Law-Hague have been completed. We will go to Jersey City to organize in a peaceful manner. Whether this will be possible in the face of denials of civil rights in that city I am unable to say at this time.

“Workers in Hudson County have even been denied the right to strike. Police of Jersey City have tried to stop picketing without a court injunction, so easily obtained in Hudson County.

“When our organizers enter Jersey City they are stopped by police, threatened and searched. The contents of their cars are strewn over the highway. At our organization meetings police even threaten the workers wot attend. Hague has gotten away with this too long.

“The Acts of various Jersey City officials may very well come within the scope of prosecution and indictment by the Federal Government. Various acts committed by Jersey City officials are crimes under the United States Criminal Code, punishable by a heavy fine and imprisonment up to ten years.

“Section 51 of the code [ 18 U.S.C.A. § 51 ] prohibits conspiracy to injure persons in exercise of civil rights. Section 7 of the Wagner Act [ 29 U.S.C.A. § 157 ] says employees shall have the right to join or assist labor organizations and to engage in concerted activities for mutual aid and protection.

“Hague may be the law in Jersey City, but he is not the law of the country.”

*806 The plaintiffs now say that these accounts were.only headlines and no such numbers invaded Jersey City as the papers stated. ' However that may be, it might be pertinent to ask who was responsible for the headlines and statements, for such papers as the Newark Evening News are not in the habit of publishing unreliable information and the Director did not and could not know what was going to happen for it evidently was not he who informed the newspapers of the reported “invasion”. He was justified in believing and seriously considering what such newspapers said.

The newspapers circulated in Jersey City at this time carried pictures of Norman Thomas and other socialists and communists at the May Day Celebration in New York City giving the communistic clenched-fist salute and singing the Internationale.

These things show only in part what was going on in and about Jersey City. All of this had the tendency to excite and doubtless did excite, incite and inflame the people of Jersey City and especially the veterans. The Director had á serious situation with which to contend. The responsibility rested upon him. He was urged on every hand to refuse the permit under threatened violence. Finally after investigating the facts and circumstances pertinent to the application, he wrote the following letter, on December 30, 1937, to the attorney of the plaintiffs refusing the .permit:

“Department of Public Safety'

• City Hall Jersey City, N. J.

December 30, 1937

“Spaulding Frazer, Esq., 744 Broad Street,

Newark, New Jersey

“Dear sir: I hereby answer your letter of December 23, 1937, addressed to me as Director of Public Safety, in which you make application for a permit to hold an open air meeting in Jersey City, which meeting’will, according to you, be addressed by Congressman Jerry O’Connell, Roger N. Baldwin, William J. Carney, Al. Barkin, Sam Macri and John Kiesler.

“On receipt of your letter, I sent you a communication, dated December 27, 1937, in which I informed you that I would, as required by ordinance, make prompt investigation of all of the facts and circumstances pertinent to your application before deciding whether to grant or refuse the issuance of the permit requested. On the same day, December 27, 1937, I received a communication written on behalf .of certain Veterans’ organizations of Jersey City, protesting against the granting of a permit to Roger N. Baldwin or to any members of the group he represents, to hold a meeting. The letter demanded that I withhold action on your application. I attach a copy of the Veterans’ letter to this communication.

“On the evening of December 28, 1937, a great mass meeting was held in the Armory at Jersey City, attended by over three thousand persons, all of whom were veterans. At that meeting a resolution of opposition was passed against the granting of the permit. Violent disorder was threatened on the part of the veterans in case the meeting was held. Announcements were made from the floor — and these announcements had the approval of the meeting — that if I should refuse to honor the Veterans’ protest and grant- a permit for the meeting, the Veterans would take the matter into their own hands and see to it that the meeting would be broken up. I refer you to copies of the local papers of Jersey City, which give an account of this meeting. I also enclose a copy of the resolution passed by the Veterans at the meeting.

“The Chamber of Commerce, representing the business interest of Jersey City, have gone on record against the granting of this permit.

“The Central Labor body of Hudson County has gone on record against the granting of this permit.

“Other bodies of citizens have opposed it, and individuals of influence in the community have protested to me against the holding of the meeting. Other facts and circumstances pertinent to your meeting, in addition to those herein called to your attention, convince me that the granting of the permit you request would lead to riots, disturbances and disorderly assemblage.

“Therefore, I hereby refuse to issue the permit for an open air meeting requested by you in your letter of December 27, 1937, and my refusal is for the purpose of preventing riots, disturbances and disorderly assemblage.

“Very truly yours,

“Daniel Casey, Director”

The refusal of the permit was a ministerial act on the part of the Director and unless he grossly abused the discretion and *807 authority which the ordinance vested in him, his action should not be reversed and the judgment of the court substituted for his. Gaines v. Thompson, 74 U.S. 347 , 7 Wall. 347 , 19 L.Ed. 62 ; Ness v. Fisher, 223 U.S. 683 , 32 S.Ct. 356 , 56 L.Ed. 610 ; Louisiana v. McAdoo, 234 U.S. 627, 633 , 34 S.Ct. 938 , 58 L.Ed. 1506 ; Worker. U. S. ex rel. Rives, 267 U.S. 175, 183 , 45 S.Ct. 252 , 69 L.Ed. 561 ; Proctor & Gamble Co. v. Coe, 68 App.D.C. 246 , 96 F.2d 518, 520 .

The Supreme Court of New Jersey found in the Thomas case, supra, that lie had not abused his discretion or authority, Mr. Justice Bodiue who wrote the opinion in that case said, “The Director of Public Safety knows the temper of the people he serves”. He represented Jersey City and if a riot, disturbance or disorderly asscmblage had resulted from the granting of the permit ^the city would have been responsible. The Statute of New Jersey on this subject provides that:

“Any person who, by reason of mob violence as defined and stated in sections 2:152-1 to 2:152-3 of this title, suffers material damage to his property or injury to his person shall have an action against the city in which such damage is suffered or injury inflicted, or, if not in a city, then against the county in which such damage is suffered or injury inflicted for such damages as he may sustain, to an amount not exceeding five thousand dollars.” Revised Statutes of New Jersey, 2:63-10.

Under similar statutes or ordinances, municipalities in many states have been held liable for large damages caused by mobs, riots and disorderly assemblages, Right now the Apex Hosiery Company is suing the City of Philadelphia for more than, $3,000,000 damages resulting from riots, disturbances or disorderly asscmblage. In honestly administering this ordinance, who could say with any degree of certainty that as the result of the issuanee of the permit in question, a mob, riot or disorderly assemblage would not have occurred and that considerable damage to persons or property or both would not have been done. Whose judgment under these circumstances was to be followed, the Director’s, the District Court’s or this court’s? The ordinance says the Dircctor’s. The Supreme Court of New Jersey said the Director’s. The Supreme Court of the United States in the Davis case said the 'Director’s and every other court in the country which has considered the questiou under similar ordinances and circumstances, has said the Director’s and not the court’s.

j have not forgotten that the plaintiffs charged that the officials of Jersey City influenced and intimidated the owners of private halls against the plaintiffs so that they would not rent them for meetings; alKl further that they incited and stirred tip tlie various organizations to protest against granting permits for public meetings. All of this the defendants denied,

The learned trial judge who saw all the witnesses and was in the atmosphere 0f the trial for weeks refused to find that the evidence sustained the charge that the officials of Jersey City influenced and in(imidated the owners of private halls. He aiso refused to find that they or any of them had incited or stirred up the people to protest. Yet this court, in effect overrilling the learned trial judge, and in the face of the statement of counsel for the plaintiffs, when arguing this case, that Mayor Hague was one of the most honest witnesses he had ever seen on the stand, found that the defendants, notwithstanding the Mayor’s denial, “endeavored to build tip a dangerous situation, one in which sympathizers of the appellees could not safely speak” though it had never seen or heard a single witness testify,

Thousands of permits, we are told, Werc issued in the past, but the Director refused to issue a permit to plaintiffs. This alone shows discrimination in the opinion of this court, but this is a non sequitilr. The facts and circumstances under which a meeting is to be held determine whether a permit should be issued or refused and whether or not discrimination has been practiced. The Director may grant one permit and refuse another the same day without denying “any person” athe equal protection of the laws” as required by the Fourteenth Amendment. If tlle Director had reasonable grounds to beheve that the meeting for which he refused a permit would have resulted in i'iots, disturbances or disorderly assemblage, or any one of these, and that those meetings for which he granted permits. would not, his refusal did not discriminate against “any person”, or deny to him “the equal protection of the laws.”

We do not have in this case the naked question of the right of free speech or free assembly within the meaning of the Constitution of the United States. The issue *808 here is not primarily free speech at all, but the plaintiffs are seeking to make it such. We have here a number of individuals and organizations which have combined and are masquerading under the flag of free speech as though this were the sole issue.

If the primary question here were the maintenance of free speech, the defense of the Constitution of the United States or the principles upon which democracies are founded,' can anyone doubt where these protesting organizations — The American Legion, Veterans of Foreign Wars, Hudson County American Legion, and others— would stand? Many of these men have risked their very lives in the service of their country, “to make democracy safe for the world”, to defend free speech, the Constitution of the United States and the principles upon which democracies are built.

The defendants contend that the District Court - was without jurisdiction in this case. The plaintiffs, on the contrary, say that it has jurisdiction under sections 24 (1) and 24 (14) of the Judicial Code, 28 U.S.C.A. § 41 (1, 14). This was averred in paragraphs 6 and 7 of the bill. It is alleged in paragraph 6 that this is a suit of a civil nature, in equity, arising under the Constitution and laws of the United States, in which the amount in controversy exceeds $3,000 exclusive of interest and costs. This allegation was based upon Title 28 U.S.C.A. § 41 (1), Sec. 24 (1) Judicial Code.

Did the value of the civil rights of which the plaintiffs alleged they were deprived exceed $3,000, exclusive of interest and costs?

There is no allegation as to the value of these rights except the bald statement that they exceed $3,000. Of course, as the majority opinion says, in tort actions, the jury in a proper case, when the damnum is sufficiently laid, may award exemplary damages which may be added to the actual damages suffered in order to make up the jurisdictional amount. Barry v. Edmunds, 116 U.S. 550 , 6 S.Ct. 501 , 29 L.Ed. 729 ; Scott v. Donald, 165 U.S. 58, 89 , 17 S.Ct. 265 , 41 L.Ed. 632 . Where the plaintiff in good faith claims the jurisdictional amount in damages, it is sufficient, if not traversed, to give the court jurisdiction. Wiley v. Sinkler, 179 U.S. 58 , 21 S.Ct. 17 , 45 L.Ed. 84 ; Smithers v. Smith, 204 U.S. 632 , 27 S.Ct. 297 , 51 L.Ed. 656 . But where the sufficiency of the jurisdictional amount is timely and appropriately challenged, as was done in the case at bar, the plaintiff must support the allegations by competent proof. The burden of establishing the jurisdictional facts is on the plaintiff throughout the litigation. KVOS, Inc., v. Associated Press, 299 U.S. 269 , 57 S.Ct. 197 , 81 L.Ed. 183 . This the plaintiffs did not do. There is not a word showing the pecuniary value of the rights of which they complain they were deprived and the finding of fact as to this value was a mere guess.

However, I think that the court had jurisdiction under section 24 (14) of the Judicial Code as this court found.

The decree of the District Court should be affirmed as to A. 1, 2, and 3, and B. 1, 2 and 3, but reversed as to B. 4 (a), (b), (c) and (d).

“1. From and after the passage of this ordinance, no public parades or public assembly in or upon the public streets, highways, public parks or public buildings of Jersey City shall take place or be conducted until a permit shall be obtained from the Director of Public Safety.

“2. The Director of Public Safety is hereby authorized and empowered to grant permits for parades and imblic assembly, upon application made to him at least three days prior to the proposed parade or public assembly.

“3. The Director of Public Safety is hereby authorized to refuse to issue said permit when, alter investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage.

“4. Any person or persons violating any of the provisions of this ordinance shall upon conviction before a police magistrate of the City of Jersey Oily be punished by a fine not exceeding two hundred dollars or imprisonment in the Hudson County Jail for a period not exceeding ninety days or both.”