565 F.2d 1166 (10th Cir. 1977), 76-1418, Tate v. Akers

Docket Nº:76-1418.
Citation:565 F.2d 1166
Party Name:Bob TATE and Jerry Higgs, Plaintiffs-Appellees, v. Lola AKERS, Dorothy Dietz, Dick Foster, Roger Gonzales, Patsy McGinley, Frank H. Moore, Norman E.
Case Date:November 23, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1166

565 F.2d 1166 (10th Cir. 1977)

Bob TATE and Jerry Higgs, Plaintiffs-Appellees,

v.

Lola AKERS, Dorothy Dietz, Dick Foster, Roger Gonzales,

Patsy McGinley, Frank H. Moore, Norman E. "Skip" Roberts,

and Richard W. Weeks, Members of the City Council of the

City of Laramie, Wyoming, Ted C. Gertsch, Member of the City

Council of the City of Laramie, Wyoming and Mayor of the

City of Laramie, Wyoming, and Ted Kersting, Chief of Police

of the City of Laramie, Wyoming, Defendants-Appellants.

No. 76-1418.

United States Court of Appeals, Tenth Circuit

November 23, 1977

Argued and Submitted May 18, 1977.

Page 1167

Hugh B. McFadden, Jr., Laramie, Wyo. (Corthell, King, McFadden, Nicholas & Prehoda, Laramie, Wyo., Warren L. Johns, Walter E. Carson, Johns & Carson, Washington, D. C., and Boardman Noland, Takoma Park, Md., on the brief), for plaintiffs-appellees.

Thomas S. Smith, Laramie, Wyo. (Smith, Stanfield & Scott, Laramie, Wyo., on the brief), for defendants-appellants.

Before McWILLIAMS and BARRETT, Circuit Judges, and BOHANON, Senior District Judge. [*]

McWILLIAMS, Circuit Judge.

The precise question in this appeal is whether a Seventh Day Adventist "literature evangelist," sometimes referred to as a "colporteur," is a "solicitor," "peddler," "hawker," or "itinerant merchant," as those

Page 1168

terms are used in the City of Laramie's version of the so-called Green River Ordinance. The trial court, after trial of the matter and after having heard testimony as to the nature of a colporteur's work, found, and concluded, that a colporteur was neither a solicitor, a peddler, a hawker, nor an itinerant merchant, and accordingly held that the Laramie ordinance did not apply to colporteurs. The trial court's memorandum opinion appears as Tate v. Akers, 409 F.Supp. 978 (D.Wyo.1976). Our study of the matter convinces us that the trial court's disposition of the matter finds support in the record, and we therefore affirm.

The ordinance with which we are here concerned, Laramie, Wyo. City Code § 28-3, provides as follows:

The practice of going in and upon private residences, in the city, by solicitors, peddlers, hawkers, itinerant merchants, not having been requested or invited to do so by the owner or occupant of such private residences for the purpose of soliciting orders for the sale of goods, wares, and merchandise, or for the purpose of disposing of or peddling or hawking the same, is hereby declared to be unlawful and a nuisance. The chief of police and police force of the city shall suppress the same and abate any such nuisance. (Emphasis added.)

The record before us does not disclose the date when the foregoing ordinance was enacted. The record does disclose that in 1974 an amendment to exempt bona fide religious organizations from the ordinance was defeated by the City Council for Laramie, Wyoming. Thereafter, the Mayor and City Council of Laramie announced their intention to enforce the ordinance against colporteurs of the Seventh Day Adventist Church and others. Apparently the ordinance had not been so enforced prior thereto. In any event, it was in this general setting that Bob Tate and Jerry Higgs, both members of the Seventh Day Adventist Church and each responsible for carrying on, and supervising others carrying on, "a campaign of literature evangelism in Laramie, Wyoming," brought a class action against the Mayor, the members of the City Council, and the Chief of Police of Laramie, Wyoming. Pursuant to 28 U.S.C. §§ 2201 and 2202, the plaintiffs sought a declaratory judgment that the aforementioned ordinance by its own terms was inapplicable to them, and, alternatively, that if the ordinance were found to be applicable to them, a declaration that the ordinance is unconstitutional under the First and Fourteenth Amendments to the United States Constitution. Jurisdiction was based on 28 U.S.C. § 1343, the action being one in equity authorized by 42 U.S.C. § 1983.

The defendants' position was that the ordinance in question was applicable to the plaintiffs and that such was a constitutional exercise of police power by the City of Laramie.

Trial was to the court, and the plaintiffs called two witnesses who testified as to the general nature of the Seventh Day Adventist religion, and more particularly...

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