355 U.S. 313 (1958), 48, Staub v. City of Baxley

Docket Nº:No. 48
Citation:355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302
Party Name:Staub v. City of Baxley
Case Date:January 13, 1958
Court:United States Supreme Court

Page 313

355 U.S. 313 (1958)

78 S.Ct. 277, 2 L.Ed.2d 302



City of Baxley

No. 48

United States Supreme Court

Jan. 13, 1958

Argued November 18-19, 1957



A city ordinance made it an offense to "solicit" citizens of the City to become members of any "organization, union or society" which requires fees or dues from its members without first applying for and receiving from the Mayor and Council a "permit," which they might grant or refuse after considering the character of the applicant, the nature of the organization and its effects upon the general welfare of the citizens. For soliciting applications for membership in a labor union in the private homes of employees without applying for or obtaining such a permit, appellant was convicted of a violation of this ordinance and sentenced to fine or imprisonment, notwithstanding her claim that the ordinance violated her rights under the Federal Constitution. The State Court of Appeals affirmed. It declined to pass on appellant's contention, on the grounds that (1) appellant lacked standing to attack the constitutionality of the ordinance because she had made no attempt to obtain a permit under it, and (2) under state procedure, her attack should have been made against specific sections of the ordinance, and not against the ordinance as a whole.


1. The decision of the State Court of Appeals does not rest on an adequate nonfederal ground, and this Court has jurisdiction of this appeal. Pp. 318-320.

(a) Failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. P. 319.

(b) In the circumstances of this case, appellant's failure to attack specific sections of the ordinance, in accordance with state procedure, is not an adequate nonfederal ground of decision. Pp. 319-320.

2. The ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council, and thereby constitutes a prior restraint upon, and abridges, that freedom, contrary to the Fourteenth Amendment. Pp. 321-325.

94 Ga.App. 18, 93 S.E.2d 375, reversed.

Page 314

WHITTAKER, J., lead opinion

MR. JUSTICE WHITTAKER delivered the opinion of the Court.

Appellant, Rose Staub, was convicted in the Mayor's Court of the City of Baxley, Georgia, of violation of a city ordinance and was sentenced to imprisonment for 30 days or to pay a fine of $300. The Superior Court of the county affirmed the judgment of conviction; the Court of Appeals of the State affirmed the judgment of the Superior Court, 94 Ga.App. 18, 93 S.E.2d 375, and the Supreme Court of the State denied an application for certiorari. The case comes here on appeal.

The ordinance in question is set forth in the margin.1 Its violation, which is [78 S.Ct. 279] not denied, arose from the following

Page 315

undisputed facts shown at the trial: appellant was a salaried employee of the International Ladies' Garment Workers Union, which was attempting to organize the employees of a manufacturing company located in the nearby town of Hazelhurst. A number of those employees lived in Bazley. On February 19, 1954, appellant and one Mamie Merritt, also a salaried employee of the union, went to Baxley and, without applying for permits required under the ordinance, talked with several of the employees at their homes about joining the union. While in a restaurant in Baxley on that day, they were sought out and questioned by the Chief of Police concerning their activities in Baxley, and appellant told him that they were "going around talking to some of the women to organize the factory workers . . . and hold[ing] meetings with them for that purpose." Later

Page 316

that day, a meeting was held at the home of one of the employees, attended by three other employees, at which, in the words of the hostess, appellant

just told us they wanted us to join the union, and said it would be a good thing for us to do . . . and went on to tell us how this union would help us.

Appellant told those present that the membership dues would be 64 cents per week, but would not be payable until the employees were organized. No money was asked or received from the persons at the meeting, but they were invited "to get other girls . . . there to join the union" and blank membership cards were offered for that use. Appellant further explained that the immediate objective was to "have enough cards signed to petition for an election . . . with the Labor Board."2

On the same day, a summons was issued and served by the Chief of Police commanding appellant to appear

Page 317

before the Mayor's Court three days later to answer "to the offense of Soliciting Members for an Organization without a Permit & License."

Before the trial, appellant moved to abate the action upon a number of grounds, among which were the contentions that the ordinance

shows on its face that it is repugnant to and violative of the 1st and 14th Amendments to the Constitution of the United States in that it places a condition precedent upon, and otherwise unlawfully restricts, the defendant's freedom of speech as well as freedom of the press and freedom of lawful assembly

by requiring, as conditions precedent to the exercise of those rights, the issuance of a "license" which the Mayor and city council are authorized by the ordinance to grant or refuse in their discretion, and the payment of a "license fee" which is discriminatory and unreasonable in amount and constitutes a prohibitory flat tax upon the privilege of soliciting persons to join a labor union. These contentions were overruled by the Mayor's Court and, after a continuance,3 the case was tried and appellant [78 S.Ct. 280] was convicted and sentenced as stated.4 The same contentions were made in the Superior Court, where the city answered, denying "that the ordinance is invalid or void for any of the reasons stated" by appellant, and, after a hearing, that court affirmed the judgment of conviction.

Page 318

Those contentions were renewed in the Court of Appeals, but that court declined to consider them. It stated that "[t]he attack should have been made against specific sections of the ordinance, and not against the ordinance as a whole"; that, "[h]aving made no effort to secure a license, the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional"; and that, since it

appears that the attack was not made against any particular section of the ordinance as being void or unconstitutional, and that the defendant has made no effort to comply with any section of the ordinance . . . , it is not necessary to pass upon the sufficiency of the evidence, the constitutionality of the ordinance, or any other phase of the case. . . .

The court then held that "[t]he trial court did not err in overruling the writ of certiorari," and affirmed the judgment of conviction. 94 Ga.App. at 24, 93 S.E.2d at 378-379.

At the threshold, appellee urges that this appeal be dismissed because, it argues, the decision of the Court of Appeals was based upon state procedural grounds, and thus rests upon an adequate nonfederal basis, and that we are therefore without jurisdiction to entertain it. Hence, the question is whether that basis was an adequate one in the circumstances of this case.

Whether a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law, and, where a case coming from a state court presents that question, this court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court.

First National Bank v. Anderson, 269 U.S. 341, 346, and cases cited. See also Schuylkill Trust Co. v. Pennsylvania, 296 U.S. 113, 122-123; and Lovell v. Griffin, 303 U.S. 444, 450. As Mr. Justice Holmes said in Davis v. Wechsler, 263 U.S. 22, 24,

Whatever springes the State may set

Page 319

for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.

Whether the constitutional rights asserted by the appellant were

. . . given due recognition, by the [Court of Appeals] is a question as to which the [appellant is] entitled to invoke our judgment, and this [she has] done in the appropriate way. It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward non-federal grounds of decision that were without any fair or substantial support . . . [for] if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided.

Ward v. Love County, 253 U.S. 17, 22, and cases cited.

The first of the nonfederal grounds relied on by appellee, and upon which the decision of the Court of Appeals rests, is that appellant lacked standing to attack the constitutionality of the ordinance because she made no [78 S.Ct. 281] attempt to secure a permit under it. This is not an adequate nonfederal ground of decision. The decisions of this Court have uniformly held that the failure to apply for a license under an ordinance which, on its face, violates the Constitution does not preclude review in this Court of a judgment of conviction under such an ordinance. Smith v. Cahoon, 283 U.S. 553, 562; Lovell v. Griffin, 303 U.S. 444, 452.

The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.

Jones v....

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