Lynch v. City of Muskogee, 540.

• Decision Date: 31 January 1942
• Docket Number: No. 540.,540.
• Citation: 47 F. Supp. 589
• Parties: LYNCH et al. v. CITY OF MUSKOGEE et al.
• Court: U.S. District Court — Eastern District of Oklahoma

47 F. Supp. 589

LYNCH et al. v. CITY OF MUSKOGEE et al.

No. 540.

District Court, E. D. Oklahoma.

January 31, 1942.

John M. Lynch in pro per.

C. E. Castle, of Wagoner, Okl., Hayden Covington, of Brooklyn, N. Y., and I. O. Correll, of Atoka, Okl., for plaintiffs.

C. A. Ambrister, City Atty., of Muskogee, Okl., for defendants.

RICE, District Judge.

The corporate plaintiff, the Watchtower Bible and Tract Society, Incorporated, a New York corporation, is a resident of the State of New York. The individual plaintiffs are residents of the State of Oklahoma. The individual plaintiffs are duly authorized representatives of the corporate plaintiff and is known as one of Jehovah's witnesses. The individual plaintiffs act under the direction of the corporate plaintiff and engage in preaching the gospel of almighty God under Jesus Christ, and in the distribution of certain literature published by the corporate plaintiff in the City of Muskogee, a municipal corporation in Muskogee County, State of Oklahoma. The defendant, Roger Tucker, is the City Manager of said City of Muskogee; the defendant Cain Burnett is the Chief of Police of the City of Muskogee, Oklahoma. Both the City Manager and the Chief of Police are residents of the State of Oklahoma. Paragraph eight of the complaint filed herein sets forth in detail the beliefs of each of the individual plaintiffs as one of Jehovah's witnesses and what each conceives to be his duties as a witness of Jehovah. The evidence given in great length establishes the allegations contained in this paragraph of the complaint.

Prior to the tenth day of April, 1941, the individual plaintiffs were offering for sale and distribution upon the streets of the City of Muskogee the literature furnished to them by and published by the corporate plaintiff. On the tenth day of April, 1941, the City of Muskogee acting by its proper officers passed the following ordinance:

"Ordinance 1533

"An ordinance prohibiting the use of language calculated to cause breach of peace; prohibiting the display of signs, emblems, flags, or device calculated to cause a breach of the peace prohibiting blasphemy; providing a penalty for the violation hereof; providing that if any portion shall be held invalid the same shall not affect the remaining hereof; and declaring an emergency.

"Be it ordained by the council of the City of Muskogee, Oklahoma.

"Section 1. It shall be unlawful and an offense for any person, firm or corporation, within the said City, to willfully use, utter, publish, circulate or distribute any profane, violent, abusive or insulting language, in its common acceptance, is calculated to cause a breach of the peace or an assault.

"Section 2. It shall be unlawful and an offense for any person, firm or corporation, within the City, to display any sign, emblem, flag, or device, which in its common acceptance, is insulting, profane, or abusive to the citizens of said City, and which is calculated, or where the natural consequence is, to cause a breach of the peace or an assault.

"Section 3. It shall be unlawful and an offense for any person, firm or corporation, within the city, to wantonly utter, circulate or distribute any words or language casting contumelious reproach or profane ridicule of God, Jesus Christ, the Holy Ghost, the Holy Scripture, or the Christian or any other religion calculated, or where the natural consequence is, to cause a breach of the peace or an assault.

"Section 4. Any person, firm or corporation, who violates any of the provisions of this ordinance shall upon conviction thereof be punished by fine not to exceed $19.95.

"Section 5. If any part of this ordinance, or any rule or regulation herein shall be held to be invalid by a court of competent jurisdiction, such invalidity shall not affect the validity of any other part or section or other rule, regulation or requirement herein.

"Section 6. (Emergency) Whereas, it being immediately necessary for the preservation of the peace, health, and safety of Muskogee, and the inhabitants thereof, that the provision of this ordinance be put into full force from and after its passage, as provided for by law."

For some four or five weeks prior to the passage of this ordinance by the City, on each Saturday afternoon there had occurred upon the streets of Muskogee what the plaintiffs refer to as fights and what the defendants' witnesses refer to as riots, in which certain individual plaintiffs were involved on the one side and citizens of the City of Muskogee on the other. The only evidence as to the cause of these fights or riots was given by the individual plaintiffs and their testimony is to the effect that while they were upon the streets of the City of Muskogee peacefully and courteously offering their literature for sale and distribution to the public they were, without excuse or provocation, attacked by certain individual defendants, some of whom they identify as members of a certain organization known as the Americanism Club. The individual plaintiffs admitted engaging in these fights, but stated that they were fighting only in self-defense. The evidence fails to disclose that these fights were begun by any person to whom the plaintiffs offered their literature for sale.

The organization known as the Americanism Club, particularly certain members thereof, after the disturbances on the streets of Muskogee, which disturbances I think from the evidence were caused by certain members of said organization, interested themselves in the passage of a city ordinance and as a result of their activities a copy of the ordinance which was passed was procured from Oklahoma City where a similar ordinance was in force and effect and was subsequently introduced by some member of the city counsel and passed.

From April 12, 1941, to November 4, 1941, two hundred four different arrests were made by the police force of the City of Muskogee. Involved in these arrests were forty different individuals, some of whom were arrested as many as twenty three times; others from twelve...