Stanley Forman Reed

“ There is no basis for saying that freedom and order are not compatible. That would be a decision of desperation. Regulation and suppression are not the same, [12] either in purpose or result, and courts of justice can tell the difference. We must and do assume that with the determination of the Supreme Court of New Hampshire that the present ordinance entitles Jehovah's Witnesses to hold religious services in Goodwin Park at reasonable hours and times, the Portsmouth Council will promptly and fairly administer their responsibility in issuing permits on request. ”

“ Such a defense is not allowed. 'It is well settled that where a licensing ordinance, valid on its face, prohibits certain conduct unless the person has a license, one who without a license engages in that conduct can be criminally prosecuted without being allowed to show that the application for a license would have been unavailing. * * * In short, the individual is given the choice of securing a license, or staying out of the occupation, or, before he acts, seeking a review in the civil courts of the licensing authority's refusal to issue him a license. ”

“ The ordinance merely calls for the adjustment of the unrestrained exercise of religions with the reasonable comfort and convenience of the whole city. Had the refusal of the license not been in violation of the ordinance, the Supreme Court would not, we are sure, have required the appellant in its next application to go through the futile gesture of certiorari only to be told the Portsmouth Council's refusal of a license was a valid exercise of municipal discretion under the ordinance and the Fourteenth Amendment. ”

“ It is doubtless true, as a general rule, that where the officer whose duty it is to issue a license refuses to do so, and that duty is merely ministerial, and the applicant has complied with all the conditions that entitle him to it, the remedy by mandamus would be appropriate to compel the officer to issue it. That rule would apply to cases where the refusal of the officer was willful and contrary to the statute under which he was commissioned to act. ”

“ In the present prosecution there was a valid ordinance, an unlawful refusal of a license, with remedial state procedure for the correction of the error. The state had authority to determine, in the public interest, the reasonable method for correction of the error, that is, by certiorari. Our Constitution does not require that we approve the violation of a reasonable requirement for a license to speak in public parks because an official error occurred in refusing a proper application. ”

“ It must be admitted that judicial correction of arbitrary refusal by administrators to perform official duties under valid laws is exulcerating and costly. But to allow applicants to proceed without the required permits to run businesses, erect structures, purchase firearms, transport or store explosives or inflammatory products, hold public meetings without prior safety arrangements or take other unauthorized action is apt to cause breaches of the peace or create public dangers. ”

“ The Supreme Court of New Hampshire went on to hold the challenged clause in this present prosecution valid also in these words:
'The issue which this case presents is whether the city of Portsmouth can prohibit religious and church meetings in Goodwin Park on Sundays under a licensing system which treats all religious groups in the same manner. Whether a city could prohibit religious meetings in all of its parks is a doubtful question which we need not decide in this case. ”

“ First Amendment.↑ It may be that in some states, the proof of proper application and unlawful refusal is a sufficient defense. It is also true that others punish activities without a license, following an unlawful refusal. ”

“ The action of the officer is based on the authority of an act of the general assembly of the state, which, although it may be null and void, because unconstitutional, as against the applicant, gives the color of official character to the conduct of the officer in his refusal ”

“ Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, stand as decisions contrary to the New Hampshire judgment. In the Royall case two statutes were involved. One laid down the requirement that before attorneys could practice law in Virginia they had to obtain a special 'revenue license.' At the time this statute was enacted, Virginia law permitted license fees to be paid in either 'tax due coupons' or money. Subsequently Virginia passed another statute with which the Royall case was concerned. It provided that license fees could only be paid in 'lawful money of the United States'. ”

“ No theatrical or dramatic representation shall be performed or exhibited and no parade or procession upon any public street or way, and no open air public meeting upon any ground abutting thereon shall be permitted unless a license therefor shall first be obtained from the City Council.↑ '1. ”

“ This Court concluded that Thomas was forbidden by the statute from making labor union speeches anywhere in Texas without a permit for solicitation of membership. 323 U.S. at page 532 et seq., 65 S.Ct. ”