Cole v. City of Fort Smith

• Decision Date: 09 June 1941
• Docket Number: 4203
• Citation: 151 S.W.2d 1000,202 Ark. 614
• Parties: COLE v. CITY OF FORT SMITH
• Court: Arkansas Supreme Court

151 S.W.2d 1000

202 Ark. 614

COLE v. CITY OF FORT SMITH

4203

Supreme Court of Arkansas

June 9, 1941

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed in part and reversed in part.

Judgment reversed and cause dismissed in part and affirmed in part.

Woolsey & McKenzie, for appellant.

J Clib Barton, for appellee.

OPINION

HOLT, J.

Appellant, H. D. Cole, was convicted in the municipal court of Fort Smith, Arkansas, for an alleged violation of the provisions of ordinance No. 1568 of that city. Appellants Lois Bowden and Zada Sanders, were convicted in the same court for a violation of ordinance No. 1172. On appeal to the circuit court a jury was waived, and, by agreement, the causes were consolidated for trial and submitted to the court. Appellants were again convicted and fines assessed. This appeal followed.

That part of the ordinance under which H. D. Cole was convicted is as follows: "Item 10. Advertising: Distributors of circulars, handbills, samples or other advertising matter, $ 25 per annum, $ 5 per month, $ 1 per day; and each person engaging in distributing such advertising matter, whether upon his own account or as an agent, servant, or employee, shall pay said tax and shall keep in his or her possession, while so engaged, a receipt for said tax and exhibit same to the officers of the city upon demand." Violation of this ordinance under another section is made a misdemeanor and punishable by fine.

And the ordinance under which Lois Bowden and Zada Sanders were convicted provides: "Section 1. That the license hereinafter named shall be fixed and imposed and collected at the following rates and sums and it shall be unlawful for any person or persons to exercise or pursue any of the following vocations of business in the city of Fort Smith, Arkansas, without first having obtained a license therefor from the city clerk and having paid for the same in gold, silver or United States currency as hereinafter provided. . . . Section 40. For each person peddling dry goods, notions, wearing apparel, household goods or other articles, not herein or otherwise specifically mentioned, $ 25 per month, $ 10 per week, $ 2.50 per day. A person, firm or corporation using two or more men in their peddling business $ 50 per annum." Section 3 makes a violation a misdemeanor.

These causes are submitted on an agreed statement of facts:

Each of the appellants is a member of what is known as Jehovah's Witnesses, which is not a religious sect. Appellants claim to be ordained ministers of the gospel and that the authority of ordination or commission of Jehovah's Witnesses is given to them exclusively by Jehovah God. "They do not engage in this work for any selfish reason, but because they feel called to publish the news and preach the gospel of the Kingdom to all the world as a witness before the end comes. (Matt. 24:14.) They believe that in doing this they are engaged in work that the Almighty God declared must be done. To them the words 'to preach' mean to proclaim or publish. They claim to be publishers of the message of Jehovah making known His name and His government. Such publication is done by word of mouth, by distribution of the printed message, by the reproduction of recorded speech, by means of electrical transcription and phonographs and by the radio. They believe that the only effective way to preach is to go from house to house and make personal contact with the people and distribute to them books and pamphlets setting forth their views of Christianity."

Appellant Cole on June 15, 1940, went about on the streets of Fort Smith selling "a paper magazine 'Consolation' setting forth their views of Christianity as held by Jehovah's Witnesses upon the contribution of five cents. Enclosed in the magazine was a printed handbill giving information concerning a convention and extending an invitation to all interested to attend. This was a convention to be held in Columbus and other large cities simultaneously. The police officers of the city asked the price of the magazine. The defendant Cole stated that anyone who would contribute a nickel could have a copy. The defendant had no privilege license issued by the city of Fort Smith for passing out and selling handbills. . . ."

Appellants, Lois Bowden and Zada Sanders, on September 12, 1940, "were going from house to house in the residential section within the city of Fort Smith playing phonograph records upon which Bible lectures had been recorded at each house after having first secured permission. Also they were presenting to the residents of these houses various booklets, leaflets and periodicals setting forth their views of Christianity held by Jehovah's Witnesses. . . . These defendants undertook to distribute these books to the residents of the city soliciting at the same time contribution of twenty-five cents for each book. . . . These books in some instances are distributed free when the people wishing them are unable to contribute. . . ."

Appellants earnestly urge here that the ordinances under which they were convicted violated their rights under the constitution of the United States in abridging the freedom of the press and prohibiting a free exercise of their religion.

Amendment No. 1 to the constitution of the United States provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

And § 1 of Amendment No. 14 is: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

We take up first for consideration the charge against appellant Cole. Is the ordinance under which this appellant was convicted unconstitutional and therefore void? It is our view that it is unconstitutional and void.

As was said by the United States Supreme Court in Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949: "Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. (Citing cases.) It is also well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the amendment. (Citing cases.) . . . The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . ."

It will be observed from the agreed statement of facts, and the trial court so found, that "the defendant, H. D. Cole, is not charged with the violation of any ordinance in passing out or offering to the public said magazine 'Consolation'." He was convicted for distributing the circulars or handbills enclosed in the magazine, which magazine only he was selling for five cents per copy.

Under the plain terms of the ordinance in question it is made an offense punishable by fine, for any one to distribute circulars or handbills on the...