Commonwealth ex rel. City of Duquesne v Danich. The Ordinance governing the granting of permits in such cases is as follows: "CITY COUNCIL OF THE CITY OF DUQUESNE FIRST COUNCIL Series 1919 BILL NO. 47 Presented by James S. Crawford, March 10, 1919 REGULATING STREET PARADES, PROCESSIONS, STREET ASSEMBLIES AND PUBLIC MEETINGS IN THE CITY OF DUQUESNE. Section 1. Be it ordained and enacted by the Council of the City of Duquesne, and it is hereby ordained and enacted by authority of the same, That all street parades, processions, street assemblages and public meetings are forbidden unless written notice of the object, time, place or route of such procession, parade, assembly or meeting, and the character, purpose and names of the officers, or persons having the same in charge be given not less than twenty-four (24) hours previous to said meeting or the forming, assembling or marching to the Mayor of said City, who shall after being satisfied that the same shall not be detrimental to the public interests, issue a permit for the holding of said street parade, procession, assembly or public meeting. Section 2. Any person or persons violating any of the provisions of this ordinance shall be punished by a fine of not less than Twenty-five ($25.00) Dollars nor more than One Hundred ($100.00) Dollars, for each offense, and in default of payment of said fine and costs, shall be committed to the Allegheny County Jail or Workhouse for a period not exceeding thirty days. Section 3. Any ordinance or part of ordinance conflicting with the provisions of this ordinance be and the same is hereby repealed in so far as the same affects the provisions of this ordinance. Passed finally in Council this 17th day of March, A. D. 1919. Attest: Clerk of Council. JAMES S. CRAWFORD, Examined and approved by me, this 17th day of March, A. D. 1919. Mayor. This Ordinance became effective the 28th day of March, A. D. 1919." The defendants upon a hearing before the Mayor of said City, were each convicted of violating the ordinance and were each fined the sum of One Hundred Dollars, and in default of payment thereof were to be committed to the Allegheny County Jail for a period of thirty days. The cases now come before us, upon appeals from these convictions, the defendants alleging that the ordinance is void, illegal, unfair, discriminatory, oppressive and unreasonable, and is in violation of the constitutional rights of the people to free speech and free assemblage, as guaranteed under the constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. The main contention of the defendants upon the arguments was upon the constitutionality of the ordinance, it being practically conceded that its physical features had been violated by the defendants. It seems to us that this phase of the case is hardly an open question for discussion by this Court in light of the decisions of our appellate courts, Commonwealth ex rel. City of Duquesne v Danich. unless we can say that this ordinance is not of the same general character as those heretofore sustained by our courts, and particularly the ordinances of the City of Pittsburgh reviewed in the cases of Commonwealth v Mervis, 55 Superior Court, page 178, and Commonwealth v Curtis, 55 Superior Court, page 184. For the purpose of comparison, the material portions of the ordinances are paralleled as follows: Be it ordained and enacted by the city of Duquesne, That all street parades, processions, street assemblages or public meetings are forbidden unless written notice of the object, time, place or route of such procession, parade, assembly or meeting, and the character, purpose and names of the officers having the same in charge be given, not less than twenty-four hours previous to said meeting or the forming, assembling or marching to the Mayor of said City, who shall after being satisfied that the same shall not be detrimental to the public interests, issue a permit for the holding of said street parade, procession, assembly or public meeting. Be it ordained and enacted by the City of Pittsburgh, That all street parades, processions, and street assemblages occupying, marching or assembling upon any highway, street, lane, alley, wharf or public square, to the interference, interruption or exclusion of other citizens in their legal rights in the use thereof are forbidden, unless written notice of the character, time, place and route of such procession or parade, and the names of the officers of the same be given by the chief officer thereof, not less than twenty-four hours previous to its forming, to the Superintendent of the Bureau of Police, and in case of assemblages or meetings, twentyfour hours' notice of the object, time and place of such assemblages or meetings shall be given to said superintendent by the person or persons making the application for the permit as hereinafter provided. The ordinance further provides that such applications shall be subject to the approval of the Department of Public Safety. It is to be observed that the only distinction, not difference, to be made between the ordinances is that in the Pittsburgh ordinance, parades, processions and street assemblages are forbidden when they interfere, interrupt or exclude other citizens in their legal rights in the use of streets, squares, etc., and in the Duquesne ordinance, when such parades, processions, street assemblages or public meetings are detrimental to public interests. In the one case the public interests are specified to be the legal rights of citizens in the use of streets, squares, etc.; in the other, no particular public interests are named, but public interests in general are protected, not only those specified in the Pittsburgh ordinance but any others to which the assemblages might be detrimental so that the words "public interests" in the Duquesne ordinance are of the same class as the interests preserved in the Pittsburgh Ordinance. We are therefore unable to distinguish the ordinance in question from those which have heretofore had the sanction of the Courts of this Commonwealth. It is to be observed that the ordinance does not prohibit assemblages, public meetings, etc. On the contrary, it provides that the Mayor shall issue a permit therefor, unless detrimental to public interests, and of that the City of Duquesne, acting through and by him, is the judge. It is not the cause of organized labor to which the Mayor objects; it is the open discussion of Commonwealth ex rel. City of Duquesne v Danich. such subject. He cannot refuse a permit because he does not approve of the subject, but the open discussion of the subject presents to him an entirely different question. This was an assemblage upon a public street. The avowed intention of the meeting was to publicly discuss a subject in a locality where in the past its discussion has been the cause of riots, bloodshed and death, a subject which at this time provokes great excitement, bitter feeling and inflamed passions among those who discuss it. The time of the meeting was fixed for a Sunday afternoon in May, at which time an unusually large number of idle and curious people are on the streets, ready and willing to be entertained by any attraction which might furnish them excitement, many of them no doubt deeply interested in the subject matter of the meetings, having divergent and pronounced feelings, opinions and convictions, and ready, willing and anxious to express them, and in the heat of the argument liable to overstep the bounds of mere verbal polemics. Is an ordinance which authorizes a municipality to forbid such a meeting within its limits an invasion of the rights of the people of such municipality? Does it not rather afford a protection to and a preservation of their rights? It is true that the Mayor might have thrown a cordon of police around the meeting and permitted it to proceed, but the presence of police at such times is not always an assurance of peace, and if the Mayor in his judgment thought that impractical or unsafe, and that the safer way was to forbid the meeting, how can his action, viewed in the broad sense, be an infraction of the rights of the people? Believing therefore that the ordinance in question is of the same general class as that sustained in the case of Commonwealth v Curtis, supra, the defendants were legally convicted of its violation. In view of the testimony in these cases, we are, however, of the opinion that the offenses do not call for the extreme penalty imposed by the ordinance, and have therefore fixed the fine at twenty-five ($25.00) Dollars in each case. Ejectment Bailey Wall Paper Company v Culp. -Two Sheriffs' Vendees--Representations—Judgment on Whole Record Act of April 20, 1911, P. L. 70. In ejectment, between two different sheriff's vendees for the same land, after a jury had disagreed, judgment upon the whole record under the Act of April 20, 1911, P. L. 70, was entered for defendant where there was no evidence of fraudulent representations, whereby plaintiff was misled when the property was first sold on a first mortgage to defendant, the deed of the plaintiff postdating the first sale one year and five months. Plaintiff having purchased on a second lien and having failed to prove a fraudulent design by defendant could not recover. Motion for Judgment. No. 58 October Term, 1917. C. P. Allegheny County. Robert S. Chess and R. P. & M. R. Marshall, for plaintiff. HAYMAKER, J., April 28, 1920.-At the conclusion of the trial the defendant put a point for binding instructions, which was declined. The jury having disagreed the defendant now moves for judgment in his favor upon the whole record as provided by the Act of April 20th, 1911, P. L. 70. Bailey Wall Paper Company v Culp. This is an action of ejectment between two different sheriff's vendees for the same tract of land containing 92 acres, situate in West Deer Township. The plaintiff company contends that the sheriff's deed to the defendant, Culp, was fraudulent and void, on the ground that at the time of the Sheriff's sale it was, and for sometime prior thereto had been, a judgment creditor of one Mary F. Christy, whose property was so sold by the Sheriff and purchased by the defendant, and that Culp, with the connivance and acquiesance of Mrs. Christy, his mother-in-law, induced plaintiffs to withhold execution on its judgment against her, by certain fraudulent representations made by him, as hereinafter set forth, whereby, in the meantime, her real estate against which plaintiff's judgment was a lien, was sold by the Sheriff without the knowledge of the plaintiff, and purchased by the defendant. In disposing of this motion we should assume that all the material evidence on the part of the plaintiff is true, and with that assumption determine whether there was a case proper for submission to the jury. Taking the facts in their order, we find that on June 21st, Mary F. Christy executed her bond and mortgage to the Peoples National Bank of Tarentum in the penal sum of $10,000.00, conditioned for the payment of $5,000.00 in three years thereafter with interest payable semi-annually. The mortgage was duly recorded and was against the same property described in the writ of Ejectment in this case. On July 1st, 1914, Mrs. Christy delivered her judgment note to the plaintiff company, payable one day after date, for $5,150.00, and the judgment thereon was confessed on December 26th, 1914 in the sum of $5,564.00. Later, Mrs. Christy became further indebted to the plaintiff's, so that in October, 1915, she owed the company the total sum of $13,825.07, only $5,150.00 of which was secured by said judgment. There is evidence on the part of the plaintiff, in substance, as follows: That during the Fall of 1915 the defendant met in Pittsburgh certain members of the plaintiff company when, in the interest of Mrs. Christy, he stated that he was anxious to protect the interest of both the plaintiff and Mrs. Christy; that her real estate was worth $100,000.00; that he was then engaged in an effort to sell it and pay plaintiff's claims; that plaintiff would be paid in full on the sale of the property, about December 10th, or 15th, 1915, with enough purchase money remaining to provide for Mrs. Christy; that he was director of the Peoples National Bank of Tarentum, the holder of the first mortgage; that he could prevent its foreclosure to the detriment of the plaintiffs' provided plaintiffs would not proceed to the collection of its judgment; and that in Cleveland, at plaintiffs' place of business, the defendant stated to plaintiff, in the presence of Mrs. Christy and with her acquiesence, that they then had an offer of $50,000.00 for her said property; that it was worth $100,000.00, and that they would probably get together and sell it at a price between $50,000.00 and $100,000.00, provided plaintiff would hold off in the collection of its claim; that the plaintiff, believing that the statements made by the defendant were true, refrained from the collection of its claim at that time and for some time thereafter, and in addition assisted defendant in a successful effort to have certain other creditors do likewise. There is evidence that the foregoing statements made by Culp were not true. On November 19th, 1915, judgment was confessed on the bond accompanying the mortgage of the Peoples National Bank of Tarentum, in the sum of $5,292.00, and a Fi. Fa. issued thereon on November 19th, 1915, returnable to the First Monday of December following. On December 2nd, 1915, the bank assigned its judgment to the defendant, Culp, who, at that time, paid the bank's judgment, interest and costs, and four days later the Bailey Wall Paper Company v Culp. mortgaged premises were sold by the Sheriff to Culp for $68.47, and his deed from the Sheriff was recorded December 21st, 1915. The land so purchased had a value of several thousand dollars in excess of the amount paid by the defendant. On April 11th, 1917, the plaintiff company issued its Fi. Fa., a levy was made on the same property, and the interest of Mrs. Christy was sold on May 7th, 1917, to the plaintiff for $112.69 and the Sheriff's deed therefor was recorded May 24th, 1917. It will thus be seen that the Sheriff's deed to Culp, the defendant, was one year and five months earlier than that of the Bailey Wall Paper Company, the plaintiff in this case. Assuming, as we must, that the foregoing representations made by Culp were untrue, are they sufficient to justify a verdict in favor of the plaintiff? If they are, we should refuse defendant's motion and direct a re-trial of the case. We are of opinion, however, that they are not sufficient, in the light of the following uncontradicted facts, and in the absence of evidence necessary to entitle plaintiff to a verdict as hereafter suggested. The claim of the bank against Mrs. Christy was a valid one, antedating any business relations between her and the plaintiff. There is no evidence that the action of the bank, in the collection of its claim, was at the instance of either Mrs. Christy or Culp, or that it had any other purpose in view than the honest collection of its claim, nor is there any evidence that Culp knew that the bank was proceeding to collect, until six days after it had levied an execution on the premises. There is no evidence that Mrs. Christy knew of the action of the bank, other than such constructive notice as she would have by a levy and advertisement of sale, and the only direct evidence is that she did not know of the sale and purchase by Culp, until five months thereafter. There is no proof that Culp purchased either as her agent or with her money, or with the understanding that she was in any way to be benefited by his purchase. There is no evidence that the creditor, the bank; the debtor, Mrs. Christy; or the purchaser, Culp; entered into any fraudulent design, one with the other, for the sale and purchase of the property, with the intent to hinder, delay or defraud the plaintiff, or other creditors. The assignment of the bank's judgment to the defendant entitled him to be subrogated to the rights of the assignor; and the right of the assignor to subject the property to execution and sale cannot be questioned. We are of opinion that defendant's point for binding instructions should have been affirmed, and therefore the present motion is allowed and judgment is now entered for the defendant upon the whole record. |
