331 U.S. 549 (1947), 574, Rescue Army v. Municipal Court of Los Angeles

Docket Nº:No. 574
Citation:331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666
Party Name:Rescue Army v. Municipal Court of Los Angeles
Case Date:June 09, 1947
Court:United States Supreme Court

Page 549

331 U.S. 549 (1947)

67 S.Ct. 1409, 91 L.Ed. 1666

Rescue Army


Municipal Court of Los Angeles

No. 574

United States Supreme Court

June 9, 1947

Argued February 6, 7, 1947



Being charged in a municipal court in California on two counts with violations of three sections of a municipal code governing the solicitation of contributions for charity, which sections incorporated by reference numerous other sections of an intricate and ambiguous chapter, appellants sued for a writ of prohibition to test the jurisdiction of the trial court, claiming that the code unduly abridged the free exercise of their religion contrary to the First and Fourteenth Amendments. In an opinion which ambiguously incorporated by reference parts of its opinion in another case involving a wider range of issues, the Supreme Court of California sustained the validity of the code and the jurisdiction of the municipal court without clearly identifying or construing the relevant provisions of the code or passing upon questions of local procedure necessarily involved.


1. The State Supreme Court's judgment is "final" within the meaning of § 237(a) of the Judicial Code, and this Court has jurisdiction of an appeal therefrom. Bandini Co. v. Superior Court, 284 U.S. 8; Bryant v. Zimmerman, 278 U.S. 63; Plessy v. Ferguson, 163 U.S. 537, followed. Gospel Army v. Los Angeles, ante, p. 543, distinguished. Pp. 556-568.

2. This Court, pursuant to long-settled policy in disposition of constitutional questions, declines to exercise its jurisdiction to pass upon the constitutional issues raised in the appeal, since they are presented in a highly abstract and speculative form and the State Supreme Court has not clearly interpreted the numerous ambiguous and interdependent provisions of the intricate chapter out of which they arise. Pp. 574-585.

3. Decision of the constitutional questions by this Court should await the determination which necessarily will be made in the further proceedings in the municipal court whether, in the first count, appellants have been charged independently or alternatively under two subsections. Pp. 576-577.

4. In a case such as this, the jurisdiction of this Court to adjudicate constitutional issues should be exerted only when they are presented in clean-cut and concrete form, unclouded by any serious

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problem of construction relating either to the terms of the questioned legislation or to its interpretation by the state courts. P. 584.

5. The appeal is dismissed without prejudice to the determination in the future of any issues arising under the Federal Constitution from further proceedings in the municipal court. Pp. 584-585.

28 Cal.2d 460, 171 P.2d 8, appeal dismissed without prejudice.

The Supreme Court of California denied a writ of prohibition to test the jurisdiction of a municipal court to try appellants for alleged violations of a municipal code governing the solicitation of contributions for charity, which they challenged as unduly abridging the free exercise of their religion contrary to the First and Fourteenth Amendments. 28 Cal.2d 460, 171 P.2d 8. Appeal dismissed, without prejudice to the determination in the future of any issues arising under the Federal Constitution from further proceedings in the municipal court. P. 585.

RUTLEDGE, J., lead opinion

MR. JUSTICE RUTLEDGE delivered the opinion of the Court.

On the merits, this appeal presents substantial questions concerning the constitutional validity of ordinances of the City of Los Angeles governing the solicitation of contributions for charity. First and Fourteenth Amendment grounds are urged as nullifying them chiefly in the view that they impose prior restraints upon and unduly abridge appellants' rights in the free exercise of their religion. Those rights, as claimed, are to engage in soliciting donations for charity as a part of their religion free from the ordinances' restrictions.

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Similar, but also distinct, questions were involved in Gospel Army v. Los Angeles, dismissed today for jurisdictional reasons. 331 U.S. 543. This case, however, arose procedurally in a different fashion, so that it is not subject to the same jurisdictional defect. And the procedural difference is important not merely for our jurisdiction, but also for determining the propriety of exercising it in [67 S.Ct. 1411] the special circumstances presented by this appeal.

The California Supreme Court heard and determined the Gospel Army case several months in advance of this one. It sustained the regulations in both instances, filing separate opinions in each case. 27 Cal.2d 232; 28 Cal.2d 460. But the attack upon the city ordinances in the Gospel Army case covered a much wider range than here, and the court's principal opinion was rendered in that cause. Hence, in this case, it disposed of overlapping issues merely by reference a fortiori to its "approval" of the challenged provisions in the Gospel Army opinion.

As will more fully appear, this mode of treatment, together with interlacing relationships between provisions involved here and others in the Gospel Army case, has combined with the necessitated dismissal of that appeal to create for us difficult problems in determining exactly how much of the regulatory scheme approved in the Gospel Army opinion, and hence also how much of that decision must be taken as having been incorporated in the disposition of this cause. By virtue of the California court's method of decision, we are largely without benefit of its judgment upon these matters, including possible questions of severability. Consequently, this fact, together with the different jurisdictional postures in which the cases reach this Court, would force us to determine those questions independently before undertaking any decision on the merits.

That necessity and the difficulties tendered by the extricating problem raise substantial questions concerning

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the disposition appropriate, in the unusual situation, to be made of this appeal. In order to present the problem with a fair degree of precision, it is necessary to state in some detail the nature of the two proceedings, their relationships to each other, and their procedural, as well as jurisdictional, differences.


This suit is one for a writ of prohibition. The appeal is from the California Supreme Court's judgment denying appellants' application for such a writ. 28 Cal.2d 460. They instituted the suit in the District Court of Appeal, Second Appellate District, Division Three, of California. Its object was to test the jurisdiction of the respondent Municipal Court of Los Angeles to proceed with a pending criminal prosecution against Murdock, who is an officer of the Rescue Army. In that court, he had been charged with violating three provisions of the city ordinances, had been twice convicted, and twice the convictions had been reversed by the Superior Court of Los Angeles County.1

While the case was pending in the Municipal Court after the second reversal, appellants filed their petition in this cause in the District Court of Appeal. Alleging that the Municipal Court was threatening to proceed with a third trial on the same charges, they set forth grounds held sufficient under the state procedure to present for adjudication the question of the Municipal Court's jurisdiction. 28 Cal.2d at 462-467.

The District Court of Appeal denied the writ. Thereupon the state Supreme Court transferred the cause to its own docket and issued an alternative writ of prohibition

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pending determination there. As in the Gospel Army case, the Supreme Court, with three of the seven justices dissenting, decided the issues on the merits against the appellants. It therefore denied the writ, at the same time discharging the alternative writ. In short effect, the ordinances, insofar as they were involved, were sustained as against the constitutional and other objections raised concerning them. Probable jurisdiction was duly noted here, and the cause was assigned for argument immediately following the Gospel Army case.

[67 S.Ct. 1412] Apparently Murdock was charged in the Municipal Court with violating three sections of the Municipal Code. These were §§ 44.09(a), 44.09(b), and 44.12 of Article 4, Chapter IV.2 Sections 44.09(a) and (b) formed the basis for the first count against Murdock.3 Colloquially speaking, § 44.09 is a "tin-cup" ordinance. In summary, its two subdivisions, (a) and (b), prohibit solicitations in the specified public places or adjacent areas "by means of any box or receptacle" except, under (a), "by the express

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written permission of the Board [of Social Service Commissioners]"; under (b), "without first filing with the Department [of Social Service] a `notice of intention' as required by Sec. 44.05" and, literally, obeying the further command that "every person so soliciting must in all other respects comply with the provisions of this Article."4 The full text of the section is set forth in the margin.5

The second count charged violation of § 44.12 by soliciting without exhibiting or reading to the persons solicited an information card issued by the Los Angeles Board of Social Service Commissioners. Section 44.12 is more general than § 44.09 as to place and manner of solicitation. It is in the following words:

No person shall solicit any contributions unless he exhibits an Information Card provided for in Sec. 44.03 of this Article and reads it to the person solicited or presents it to said person for his perusal, allowing him sufficient opportunity to read same, before accepting any contribution so solicited.

Obviously neither § 44.09(b) nor § 44.12 is...

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