State v. Jobin
| Decision Date | 20 October 1941 |
| Docket Number | Criminal 904 |
| Citation | 58 Ariz. 144,118 P.2d 97 |
| Parties | THE STATE OF ARIZONA, Appellee, v. CHARLES JOBIN, Appellant |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pinal. Levi S. Udall, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General, and Mr. Chas. H. Reed, of Counsel, for Appellee.
Mr Charlie W. Clark, for Appellant.
This is an appeal by Charles Jobin, called defendant, from a judgment pronounced on him, after a verdict by a jury in the superior court of Pinal county finding him guilty of a violation of ordinance number 101, of the city of Casa Grande. The provisions of the ordinance which defendant was found guilty of violating read as follows:
It was enacted under the provisions of section 16-207, Arizona Code 1939, which reads so far as material as follows:
The ordinance on its face is the ordinary occupational license tax ordinance for the purpose of raising revenue and is, generally speaking, valid. City of Glendale v. Betty, 45 Ariz. 327, 43 P.2d 206. Nor, indeed, does defendant deny this fact. His contention is that if the ordinance is construed to apply to his actions as they appear in the record, it is unconstitutional and void as being in conflict with the First Amendment to the Constitution of the United States, which reads as follows:
The facts as shown by the evidence and found by the jury may be stated as follows: Defendant is a regularly ordained minister of the denomination commonly known as Jehovah's Witnesses, and on August 15, 1940, was going from house to house in the city of Casa Grande preaching the gospel, as he understood it, by means of his spoken word, by playing various religious records on a phonograph, with the approval of the householder, and by distributing printed books, pamphlets and tracts which set forth his views as to the meaning of the Bible. The method of distribution of these printed books, pamphlets and tracts was as follows: He first offered them for sale at various prices ranging from five to twenty-five cents each. If the householder did not desire to purchase any of them he then left a small leaflet summarizing some of the doctrines which he preached. In at least two cases, however, he sold a copy of one of the printed books which he had offered for twenty-five cents.
Defendant admitted that he was offering these books and pamphlets for sale regularly in the city of Casa Grande and elsewhere, but stated that in some cases, if the parties did not desire to buy the books but promised to read them carefully, they were given free of charge. He also testified that he was doing this because he believed it was his religious duty to do so. He admitted that not only he had not applied for a license to sell the books in question, under the ordinance above set forth, but that when the city marshal told him that he was violating the ordinance, he insisted that he had a right to do so and refused to purchase a license. It is claimed that he could not be compelled to take out a license as preliminary to selling the books and pamphlets in question because (a) it violated his right of free speech, and (b) his free exercise of religion, as guaranteed him by the First Amendment, supra.
The first question we consider is whether what he was engaged in doing was peddling, for if it was not he has not violated the ordinance. A peddler has been comprehensively defined as a small retail dealer who carries his merchandise with him, traveling from place to place, or from house to house, exhibiting his or his principal's goods for sale and selling them. Collender v. Reardon, 138 A.D. 738, 123 N.Y.S. 587; ex parte Hogg, 70 Tex. Cr. R. 161, 156 S.W. 931. Many other definitions have been given by the cases but they all necessarily include a small retail dealer who carries his merchandise with him and travels from house to house.
It is obvious from the record made that defendant was engaged in business as a peddler, for it is not necessary in order to constitute one such that it should be his sole or principal business. Hays v. Commonwealth, 107 Ky. 655, 55 S.W. 425; State v. Littlefield, 112 Me. 214, 91 A. 945. Nor is it necessary that any considerable number of sales be shown. Commonwealth v. Reid, 175 Mass. 325, 56 N.E. 617; State v. Webber, 214 Mo. 272, 113 S.W. 1054, 15 Ann. cas. 983.
In the present case not only were two actual sales shown, but defendant stated it was part of his regular business to sell these books and pamphlets. If the books which he sold were dictionaries, works of travel, fiction, or the like there could be no question but that he was engaged in peddling, for instead of taking orders and delivering the books later, he carried them with him and delivered them immediately upon sale. The question then is whether the fact that the books sold, which admittedly contained various arguments and citations supporting the religious belief which he was engaged in promulgating, and which he believed it to be his religious duty to sell, exempts him from the ordinance by reason of the First Amendment to the Federal Constitution, supra.
So far as the right of free speech is concerned, we think the question is definitely settled by the decisions of the Supreme Court of the United States in Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660, and Giragi v. Moore, 48 Ariz. 33, 58 P.2d 1249, 110 A.L.R. 314; Id., 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320; Id., 301 U.S. 670, 57 S.Ct. 946, 81 L.Ed. 1334. In the Grosjean case the Louisiana statute imposing a license tax for the privilege of engaging in the business of publishing advertising in a newspaper was held under the circumstances of the case to constitute a violation of the First Amendment, supra. The court in discussing the matter said [297 U.S. 233, 56 S.Ct. 449, 80 L.Ed. 660]:
"... (Italics ours.)
The state of Arizona has adopted a general sales tax law, and in the case of Giragi v. Moore, supra, it was contended that under the doctrine of the Grosjean case the sales tax law was invalid as applied to newspapers. We pointed out the difference between the facts and background of the Louisiana and the Arizona sales tax as affecting newspapers and that our tax was obviously a general revenue law applied to many other occupations besides newspapers and in no manner an attempt to regulate or limit the publication of a newspaper, and held the law constitutional as not violating the freedom of speech as guaranteed by the Fourteenth Amendment. The case was appealed to the Supreme Court of the United States, and on the authority of the very Grosjean case relied upon by defendant herein the appeal was dismissed as not involving a federal question. We think it is obvious to anyone who will read the cases above cited on this point that the general revenue ordinance of the city of Casa Grande imposing a license on peddlers is not unconstitutional as applied to the defendant because it violates the right of free speech.
But the point most vigorously urged is that it violates the right of the free exercise of religion. Baldly stated, defendant contends that he has the right to peddle and sell for money any books, papers and pamphlets which uphold and inculcate his particular religious belief, without paying the license required of peddlers of all secular books, merely because he believes it to be his religious duty to do so. The particular denomination to which defendant belongs has been before the courts of the various states and the federal government many times in the last few years, because it members believe they have a right, under the claim of free exercise of religion, to do many things which are prohibited by law and to refrain from doing others which are commanded by law, because their conscience does not approve of the...
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...an 'ordinary occupational license tax ordinance,' did not deny freedom of religion and of the press and affirmed the conviction. 118 P.2d 97, 98. An appeal to this was allowed under § 237 of the Judicial Code, 28 U.S.C. § 344. The Opelika ordinance required book agents to pay $10.00 per ann......
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...(though not necessarily whose only business) is such as to characterize them as being within the described class. State of Arizona v. Jobin, 58 Ariz. 144, 118 P.2d 97. The plaintiff alleges himself to be engaged 'in the business of selling * * *.' "Solicit' is defined as 'to importune'; to ......
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