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court, parade in public in the mask of the 1. IS A PARADE IN PUBLIC BY MASKED MEMKu Klux Klan in Bourbon County, and BERS OF THE KU KLUX KLAN A DISelsewhere in Kansas. It further alleged
TURBANCE OF THE PEACE ? that such a parade would seriously disturb
Since the State does not contend that the peace and quiet of the citizens of Kan
every masked parade under every circumsas, would disturb the public order and
stance would be a disturbance of the peace tranquillity, would incite others to riot
and a public nuisance, we limit our inquiry and disorder and would cause a great and
to the above question. irreparable injury to the lives, property and peace of the State of Kansas and the
The present Knights of the Ku Klux inhabitants thereof. It was further alleged
Klan claim in numerous documents pubthat such parade, by reason of those facts
lished by them to be the regeneration, reinwould be a public nuisance and that the carnation, and the logical and legal sucState was without adequate remedy at
cessor of an organization of the same name
that flourished in the Southern States imlaw. A temporary injunction was asked, which the State prayed might be made per
mediately after the Civil War. manent and perpetual on final hearing, en
assume that the present organization sucjoining the defendants and all other per
ceeded not only to the mystic phraseology, sons from parading in public in the mask
the awe-inspiring ritual and dress, but of the Ku Klux Klan in Kansas.
also to the reputation of its predecessor.
Since they have adopted the name, the plan Prior to the time set by the court for a
of organization, the ritual, the parapherhearing upon the application an agreement nalia, and many of the purposes of the old was reached between the attorneys for the
organization, they may be presumed to parties, by the terms of which agreement
have done so intentionally and with full the proposed parade was called off, and the knowledge of the reputation and character hearing extended to permit a briefing of
of the old order. It is interesting to note the legal question involved. In the mean
that reputation. while a conference of the leading Klansmen of Kansas has been called to consider the
"KU KLUX. A secret society orquestion of forbidding the public use of the ganized in many of the Southern States mask in Kansas. Upon the outcome of
after the Civil War, whose object was that conference, further action in the case apparently to prevent negroes or northdepends.
erners from gaining ascendancy in the
South. The organization warned, exThe legal questions suggested by this
pelled, whipped or murdered persons proposed use of the injunctive remedy will,
obnoxious to it, and long over-awed the we think, be of interest to the bar in gen
negroes, but was finally broken up by the eral. Those questions we will discuss as
United States military forces in 1871, fully as time and space will permit.
after the passage of the enforcement act, As indicated in the introduction to this
which was popularly known as the Ku article the State views the actions of all
Klux Act."-Funk & Wagnalls' New persons parading in public in the mask of
Standard Dictionary. the Klu Klux Klan as a disturbance of
See also: Webster's New International the peace and a common nuisance and therefore subject to injunction at the suit
Dict. Century Dictionary and Cyclopedia. of the proper State officers. In determin- New Intern. Encyclop., Vol. 13, 383. Mesing the correctness of that view, several sages and Papers of the Presidents, Vol. 7, questions logically present themselves for 132-134, 139, 150. Federal Cases, 14893, consideration. They are:
15790. 16 Statutes at Large, 140.
As evidence of the admitted connection public without lawful occasion in such of this present order with the old order manner as to alarm the public.'' discussed above, we wish to quote these Vol. 8, Ruling Case Law, 305-306. few lines from the charter of the Kansas Vol. 8, Corpus Juris, 386 et seq. City Klan introduced in evidence as Ex- Words and Phrases, 2d ed., Vol. 1, 493. hibit No. 19 in the ouster suit now pend- Bishop, Criminal Law, 7th ed. 541. ing in the Supreme Court of Kansas. Section 2659, Gen. Stat. Kan., 1915. wherein the date of granting of the charter From the few general citations above it is expressed in this manner:
will be evident that any act or conduct “On this the twenty-third day of the which is either a disturbance of the public twelfth month of the year of our Lord, order in itself, or which induces or leads nineteen hundred and twenty-two, and others to create such a disorder, is a breach on the desperate day of the wonderful of the peace. The same may be said of any week of the horrible month of the year act that alarms the public or incites fear of the Klan, fifty-six, and in the eighth or anticipated danger. cycle of the third reign of our reincar- The general rule just stated has been nation."
applied in a great many cases, and we will Having given that historical background, discuss some of them and cite others as we pass to a consideration of the question follows: : as to whether or not a masked parade by People v. Burman, 154 Mich. 150, 25 L. members of this organization is a disturb- R. A., n. s., 251: ance or breach of the peace. In so doing The case of The People v. Burman is we wish to first give a few general defini
very applicable to the case at bar. In a tions.
little town in Michigan in 1908 a socialist “ "In general terms, a breach of the organization decided to parade, carrying peace is a violation of public order, a red flags. They did so, conducting themdisturbance of the public tranquillity, by selves in an otherwise peaceful manner. any act or conduct inciting to violence The sight of the flags infuriated the pubor tending to provoke or incite others to lic, who started a riot. The paraders were break the peace.
charged with disturbing the peace by con“By peace as used in the law in this duct inciting others to disorder. The deconnection is meant the tranquillity en- fendants contended that they had a right joved by citizens of a municipality or to carry a red flag, and that it was not an community where good order reigns | improper flag in their minds, but merely a among its members, which is the natural i symbol of brotherhood and fraternity. right of all persons in political society. The Court, in affirming the conviction,
| It is, so to speak, that invisible sense of said: security which every man feels so neces- “There is no right to display a red sary to his comfort, and for which all flag in a procession when those composing governments are instituted.
the procession know that the natural and “Nor is actual personal violence an inevitable consequence will be to disturb essential element of the offense. If it the public peace and tranquillity in viowere, communities might be kept in a
lation of statute ordinance." constant state of turmoil, fear and anti- (Syl. 6.) cipated danger, without the commission "Upon trial of an information for carof the offense.'
rying a red flag in a parade and there“The term 'breach of the peace' is by infuriating the public in violation of generic, and includes going around in an ordinance against riot, evidence is ad
missible as to how such flag was This is probably the earliest American garded by the public.” (Syl. 3.) case involving the question of inciting
"The question here is not whether the others to disorder. The defendant was indefendants have in general a right to dicted in 1794 for raising a standard or parade with a red flag. It is this: Have pole (unfriendly to the established governthey such a right wlon they knew that ment), "to the great disturbance of the the natural and inevitable consequence peace. The Court said: was to create riot and disorder.
"Pole raising was a notorious symp. They knew that it would excite fears and tom of dissatisfaction, and the exhibition apprehension and that by displaying it of this in the only part of this country they would provoke violence and disor
where the government was supposed to der. Their right to display a red flag have strength must have made an imwas subordinate to the rights of the pression very unfavorable to the whole public." (Page 256.)
country, promoted violence in the people By reading again the above quotations here, and induced force on the part of and substituting the word mask for the the government." words red flag, the applicability of the Commonwealth v. Daley, 2 Clark (Pa), citations will be evident.
151: Commonwealth v. Haines, 4 Clark (Pa.), This case was decided in 1844. A lively 17:
political issue, which incidentally involved This is an early Pennsylvania case where a religious question, was stirring the comthe defendant, an innkeeper in an Irish munity. One of the political meetings was community, hung up on St. Patrick's day, broken up by a disorderly mob. The para "paddy" or effigy of St. Patrick. This ties meeting thereupon adjourned and later
with banners and charged, but the Court said:
weapons, and seemingly challenged inter"No man has the right to trifle with ference. The interference duly came, and the feelings of any large class of men as a result a riot and murder ensued. The so as to provoke them to a breach of the Court in its discussion of the case dwelt peace.
The gist of the offense upon the legality of a lawful assembly to is its tendency to provoke a breach of consider a political question, and deplored
, the peace. It may be indiscrect in the and condemned the mob that broke up the Irish residents in the district to take first meeting. In considering the second notice of acts of this kind, but it is worse meeting, however, out of which grew the than indiscreet in others to provoke riot, the Court said:
, them to do so.
“But a public meeting, otherwise In a footnote to this case it is said:
legal, may from the manner, place and “It is a curious fact that in one of the circumstances of its organization, become earliest riot cases on record, the overt an unlawful and even a riotous assembly. act was the same as in the present case.
If the meeting so summoned In 1740 London was thrown into an up- and assembled adjourned to march in a roar, on St. Patrick's day, by a collision body to a place principally inhabited between two rival processions, one bear- by citizens notoriously opposed to its obing a 'paddy' and the other a 'shelah'." jects, openly exhibiting arms and disPennsylvania v. Norris, Addison, 274: playing banners containing inscriptions
lacerating to the feelings of such citizens, that portion of the community who are the assembly sunk from its dignified posi- proscribed and antagonized by this organition of a body of free men, exercising a zation may be able to restrain and control great constitutional right, into a mere themselves is a serious question. The fact riot."
that they have in general thus far done so For further cases treating the question does not show or tend to show that they of what constitutes a disturbance of the have not been disturbed. public tranquillity, see the following:
Having in this brief manner disposed of Commonwealth v. Karvonen, 219 Mass.
the first question, we will now pass to a 30; 106 N. E. 556, L. R. A. 1915 B, 706.
consideration of the second, which is : The Insurance Company v. The Tobacco 2. IS SUCH A PARADE A COMMON OR PUBLIC Company, 116 S. W. 234. (Armed and
NUISANCE? masked night riders held to constitute mob
In considering this question we will necand riot.)
essarily have to deal somewhat with the Tandy v. City of Hopkinsville, 160 Ky. third question, which deals with the right 220; 169 S. W. 703. (Night rider case.) of a court of equity to enjoin such a nui
Deek v. Commonwealth, 178 S. W. 1129; sance. We will endeavor, however, to conL. R. A. 1916 B, 1117.
fine ourselves to a discussion of whether or Commonwealth v. Frishman, 126 N. E not an act which disturbs the peace and 838; 9 A. L. R. 549.
violates and tends to violate the public Oklahoma v. Darneal, 174 Pac. 290; 1 order and tranquillity, is a common or pubA. L. R. 638.
lic nuisance. In considering that question Commonwealth v. Oakes, 113 Mass. 8. it would be well first to give a few general (Holding state need only show one person definitions: disturbed.)
“A nuisance is anything wrongfully Cartwell v. Rochester, 8 N. Y. State done or permitted which injures or an291.
noys another in the enjoyment of his Burk v. Commonwealth, 19 Pa. 412.
legal rights." People v. Most, 171 N. Y. 423; 58 L. R. Cooley on Torts, 565. A. 509.
3 Blackstone Commentaries. The plaintiff feels that these cases cited N. Y. Penal Code, 385. above will clearly indicate that any act by Syl. 1, The State v. Rabinowitz, 85 any person or persons which is either vio- Kan. 841.
, duces others to violence, or which disturb have been held to be common or public or tends to disturb the public tranquillity nuisances by citing and discussing a few or order, is a breach of the peace or a dis- cases, turbance of the peace whether or not the The State, ex rel., v. Lindsay, 85 Kan. 79. anticipated violence occurs. As Mr. This was an action brought by the AtBishop has said, “The community is dis- torney General, in which an injunction turbed whenever it is alarmed." The was granted, enjoining the defendants plaintiff claims that the community, or a from keeping a private insane asylum, one considerable portion thereof, is alarmed of the chief contentions being that the by these masked parades. The defendants keeping of such asylum is a public nuicannot avail themselves of the fact that in sance, because the noise of the inmates and general the communities have thus far hel 1 their frequent escapes caused “fear and their heads and have not let their alarm consternation to the public, disturbing the incite them to actual disorder. How long | peace and quiet thereof." The Court. in
, or menacing in itself, or which in. We can perhaps best illustrate what acts
holding the injunction properly granted, Further on in the opinion, the Court said:
said: “Where a statute prohibiting the es- “To do any act which is calculated to tablishment of asylums or retreats for spread terror and alarm through the the care of the insane or persons of un- community *
renders the person sound mind for compensation and hire, so offending liable to indictment in comwithout first obtaining a license from the
# That this publication, State Board of Charities, is continuously given to the public in the manner above violated by receiving, keeping, maintain- stated, constitutes, in whatever light it ing and caring for persons of the classes might be viewed, a common nuisance, named in an unlicensed asylum or re- cannot, we think, be well questioned. treat, thereby causing fear, consternation That it is an injury to both the comfort and disturbance of the peace in the com- and health of a large number of persons munity, an injunction will properly be in the community
is self-evident, granted to restrict such unlawful acts, because its tendency is to fill the mind and the Court is not restricted to a pro- with anxiety, fear and alarm.” hibition of disturbances of the peace.” Hickerson v. The United States, Fed. Statler v. Rachell, 83 Kan. 86:
Case No. 18301 (1856): This was an action holding that an in- Town of Davis v. Davis, 21 S. E. 906 junction was properly granted to enjoin (W. Va.): the maintenance of a cancer hospital, State v. Nease (Ore.), 80 Pac. 897: largely by reason of the fear of those re- From the above and the cases which will siding near it, and their consequent dis- be cited under the next section it will be turbance rendered the same a nuisance. evident, we think, that an act which The State v. Rabinowitz, 85 Kan. 841 :
amounts to a breach or disturbance of the This was an action wherein the sale of
peace is a public nuisance. We will, thereintoxicating liquors in the streets and fore, pass to the question of the right of a alleys of the city of Leavenworth was en- court of equity to enjoin such acts, bearing joined as a public nuisance, and in the in mind the objection that will be made to opinion, on page 847, the Court said:
a court of equity enjoining a criminal act. “A nuisance is public if it affects the
3. community at large or if it affects a place
HAS A COURT OF EQUITY THE POWER TO
ENJOIN AN ACT WHICH IS BOTH A PUBLIC where the public have a right to and do go, such as a park, street or alley, and
NUISANCE AND A VIOLATION OF A which nuisance necessarily annoys, of
CRIMINAL STATUTE? fends or injures those who come within The question of the power of the court the scope of the influence."
of equity to enjoin a nuisance which is also Commonwealth v. Cassidy, 6 Phila. 82: a misdemeanor or violation of the criminal
This was an action charging the defend- law is one that has been frequently disant with committing a public nuisance by cussed in this country. Our courts in Kanfalsely posting circulars warning the pub. sas have repeatedly and recently passed on lic that a desperate kidnapper was at large the subject. and about to visit the city. The Court, in The State v. Rabinowitz, 85 Kan. 811 : holding that such actions were a public “(Syl. 1.) At the common law acts nuisance, said (Syl. 1):
done in violation of law, or which are "The publication of an advertisement against good morals, constitute public calculated to alarm the public mind un- nuisances" necessarily is a public nuisance and in- “(Syl. 3.) The fact that the same dictable as such.”
acts may constitute a public offense is no