Opinion
June 3, 1921.
Emory R. Buckner [ Lee Parsons Davis, District Attorney, Frederick W. Clark, Corporation Counsel, Elihu Root, Jr., and Robert P. Patterson with him on the brief], for the appellant.
Arthur Garfield Hays, for the respondents.
The Legislature had empowered the common council of Mount Vernon to enact ordinances regulating the use of public streets for holding meetings; and the ordinance clearly came within the terms of the charter. Hence public speaking upon the streets was only allowable after such leave. Without any permit from the mayor, and against his refusal thereof, a meeting could not be lawfully held. The circumstance that at the opposite street corner the Salvation Army held a meeting that same night did not show an unjustifiable discrimination. The power to grant or withhold such permits carries with it the duty to consider public convenience and to pay regard to the liability of undue congestion, disturbance or disorder so as to interfere with the public rights to pass and repass.
Withholding permits for speaking in streets or parks, therefore, does not deny the right of free speech. ( City of Buffalo v. Till, 192 App. Div. 99; People v. Pierce, 85 id. 125; Davis v. Massachusetts, 167 U.S. 43; 12 C.J. 954, § 479.) It follows that these relators, in mistaken assertion of their supposed rights, were actually breaking a valid ordinance; so that in its enforcement an arrest was in the lawful exercise of the police power. Even if discrimination against a political party were suspected, those who felt discriminated against could not take the law into their own hands, and, by such assemblage, defy this city ordinance. If a permit be improperly withheld, its issuance may be compelled through mandamus.
Hence the order should be reversed, and the writs of habeas corpus dismissed, with ten dollars costs and disbursements.
BLACKMAR, P.J., RICH and JAYCOX, JJ., concur; MILLS, J., not voting.
Order reversed and writs of habeas corpus dismissed, with ten dollars costs and disbursements.