316 U.S. 584 (1942), 280, Jones v. Opelika

Docket NºArgued (No. 280) February 5, 1942 and
Citation316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691
Party NameJones v. Opelika
Case DateJune 08, 1942
CourtUnited States Supreme Court

Page 584

316 U.S. 584 (1942)

62 S.Ct. 1231, 86 L.Ed. 1691




Argued (No. 280) February 5, 1942 and

United States Supreme Court

June 8, 1942

(Nos. 314 and 966) April 30, 1942



1. A city ordinance which requires that licenses be procured and that taxes reasonable in amount be paid, for the conduct of various businesses within the municipality, including the business of selling books and pamphlets on the streets or from house to house, and which is general and nondiscriminatory in its incidences, does not infringe the liberties of free speech, free press or free exercise of

Page 585

religion when applied to a member of a religious organization who is engaged in selling the printed propaganda of his sect. Pp. 593, 598.

2. One who sells religious literature on city streets, without having complied with provisions of an ordinance validly requiring that he first apply for and obtain a license and pay a license tax, cannot defend upon the ground that the ordinance is rendered unconstitutional as to him by a provision purporting to empower the licensing authority to revoke licenses without notice. Lovell v. Griffin, 303 U.S. 444, distinguished. P. 599.

7 So.2d 503 affirmed.

202 Ark. 614, 151 S.W.2d 1000, affirmed.

118 P.2d 97 affirmed.

The first two of these cases were brought here by writs of certiorari, 314 U.S. 593, 315 U.S. 793. The third came up by appeal. In each case, the review was of a judgment affirming a conviction and fine for violation of a city ordinance declaring it unlawful to sell books or pamphlets within the municipal limits without having obtained a license and paid a license tax.

REED, J., lead opinion

MR. JUSTICE REED delivered the opinion of the Court.

By writ of certiorari in Nos. 280 and 314, and by appeal in No. 966, we have before us the question of the constitutionality

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of various city ordinances imposing the license taxes upon the sale of printed matter for nonpayment of which the appellant, Jobin, and the petitioners, Jones, Bowden and Sanders, all members of the organization known as Jehovah's Witnesses, were convicted.

No. 280

The City of Opelika, Alabama, filed a complaint in the Circuit Court of Lee County charging petitioner Jones with violation of its licensing ordinance by selling books without a license, by operating as a Book Agent without a license, and by operating as a transient agent, dealer or distributor of books without a license.1 The license fee for Book Agents (Bibles excepted) was [62 S.Ct. 1234] $10 per annum, that for transient agents, dealers or distributors of books $5.2

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Under section 1 of the ordinance, all licenses were subject to revocation in the discretion of the City Commission, with or without notice.3 There is a clause providing for severance in case of invalidity of any section, condition or provision.4 Petitioner demurred, alleging that the ordinance, because of unlimited discretion in revocation and requirement of a license, was an unconstitutional encroachment upon freedom of the press. During the trial without a jury, these contentions, with the added claim of interference with freedom of religion, were renewed at the end of the city's case and at the close of all the evidence. The court overruled these motions, and found petitioner guilty on evidence that, without a license, he had been displaying pamphlets in his up-raised hand and walking on a city street selling them two for five cents.5 The court excluded as irrelevant testimony designed to show that the petitioner was an ordained minister, and that his activities

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were in furtherance of his beliefs and the teachings of Jehovah's Witnesses. Once again, by an unsuccessful motion for new trial, the constitutional issues were raised. The Court of Appeals of Alabama reversed the conviction on appeal because it thought the unlimited discretion of the City Commission to revoke the licenses invalidated the ordinance. Without discussion of this point, the Supreme Court of Alabama decided that nondiscriminatory licensing of the sale of books or tracts was constitutional, reversed the Court of Appeals, and stayed execution pending certiorari. 241 Ala. 279, 3 So.2d 76. This Court, having granted certiorari, 314 U.S. 593, dismissed the writ for lack of a final judgment. 315 U.S. 782. The Court of Appeals thereupon entered a judgment sustaining the conviction, which was affirmed by the Alabama Supreme Court and is final. 7 So.2d 503. We therefore grant the petition for rehearing of the dismissal of the writ and proceed with the consideration of the case.

No. 314

Petitioners Bowden and Sanders were arrested by police officers of Fort Smith, [62 S.Ct. 1235] Arkansas, brought before the Municipal Court on charges of violation of City Ordinance No. 1172, and convicted. They appealed to the Sebastian Circuit Court, and there moved to dismiss on the ground that the ordinance was an unconstitutional restriction of freedom of religion and of the press, contrary to the Fourteenth Amendment. The circuit judge heard the case de novo without a jury on stipulated facts. The ordinance required a license

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.6

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The petitioners, in the exercise of their beliefs concerning their duty to preach the gospel, admitted going from house to house without a license, playing phonographic transcriptions of Bible lectures, and distributing books setting forth their views to the residents in return for a contribution of twenty-five cents per book. When persons desiring books were unable to contribute, the books were in some instances given away free. The Circuit judge concluded as a matter of law that the books were "other goods," and that petitioners were guilty of the peddling without a license. A motion for new trial was denied. On appeal the, Supreme Court of Arkansas held the ordinance constitutional on the authority of its previous decision in Cook v. Harrison, 180 Ark. 546, 21 S.W.2d 966, and affirmed the convictions. 202 Ark. 614, 151 S.W.2d 1000. This Court denied certiorari, 314 U.S. 651, but later, because of the similarity of the issues presented to those in the Jobin case, No. 966, vacated the denial of certiorari and issued a writ. 315 U.S. 793.

No. 966

The City of Casa Grande, Arizona, by ordinance, made it a misdemeanor for any person to carry on any occupation or business specified without first procuring a license.7

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Transient merchants, peddlers, and street vendors were listed as subject to a quarterly license fee of $25.00, payable in advance.8 In the Superior Court of Pinal County, Jobin was tried and convicted by a [62 S.Ct. 1236] jury on a complaint charging that, not having "a permanent place of business in the City," he there carried on the

business of peddling, vending, selling, offering for sale and soliciting the sale of

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goods, wares and merchandise, to-wit: pamphlets, books and publications without first having procured a license

contrary to the ordinance. The evidence for the state showed that, without a license, the appellant called at two homes and a laundry and offered for sale and sold books and pamphlets of a religious nature. At one home, accompanied by his wife, he was refused admission, but was allowed by the girl who came to the door to play a portable phonograph on the porch. The girl purchased one of his stock of books, "Religion," for a quarter, and received a pamphlet free. During the conversation, he stated that he was an ordained minister preaching the gospel, and quoted passages from the Bible. At the second home, the lady of the house allowed him and his wife to enter and play the phonograph, but she refused to buy either books or pamphlets. When departing, the appellant left some literature on the table, although informed by the lady that it would not be read and had better be given to someone else. At the laundry, the appellant introduced himself as one of the Jehovah's Witnesses and discussed with the proprietor their work and religion generally. The proprietor bought the book "Religion" for a quarter, but declined to buy others at the same price. He was given a pamphlet free. When arrested, the appellant stated that he was "selling religious books and preaching the gospel of the kingdom," and that, because of his religious beliefs, he would not take out a license. A motion at the close of the evidence for a directed verdict of acquittal on the ground that the ordinance violated the Fourteenth Amendment was denied. The jury was instructed to acquit unless it found the defendant was selling books or pamphlets. It returned a verdict of guilty. On appeal, the Supreme Court of Arizona held that the ordinance, 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 Court

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was allowed under § 237 of the Judicial Code, 28 U.S.C. § 344.

The Opelika ordinance required book agents to pay $10.00 per annum, transient distributors of books (annual only) $5.00. The license fee in Casa Grande was $25 per quarter, that in Fort Smith ranged from $2.50 per day to $25 per month. All the fees were small, yet substantial. But the appellant and the petitioners, so far as the records disclose, advanced no claim and presented no proof in the courts below that these fees were invalid because so high as to make the cost of compliance a deterrent to the further distribution of their literature in those cities. Although petitioners in No. 314 contended that their enterprise was operated at a loss, there was no suggestion that they could not obtain from the same sources which now supply the funds to meet whatever...

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