City of Blue Island v. Kozul

• Decision Date: 13 May 1942
• Docket Number: No. 26471.,26471.
• Citation: 41 N.E.2d 515,379 Ill. 511
• Parties: CITY OF BLUE ISLAND v. KOZUL.
• Court: Illinois Supreme Court

379 Ill. 511

41 N.E.2d 515

CITY OF BLUE ISLAND

v.KOZUL.

No. 26471.

Supreme Court of Illinois.

March 17, 1942.

Rehearing Denied May 13, 1942.

Anna Kozul was convicted of violating an ordinance of the City of Blue Island requiring peddlers to obtain a license, and she appeals.

Reversed.Appeal from the Criminal Court, Cook County; Julius H. Miner, judge.

Landon L. Chapman, of Chicago (Joseph F. Rutherford and Hayden C. Covington, both of Brooklyn, N. Y., of counsel), for appellant.

Paul R. Schreiber, of Blue Island (Thomas J. Courtney, State's Atty., of Chicago, Russell C. Morse, of Blue Island, and John T. Gallagher, of Chicago, of counsel), for appellee.

MURPHY, Chief Justice.

The defendant, Anna Kozul, was convicted in the court of a police magistrate of a violation of ordinance No. 1491 of the city of Blue Island. On an appeal to the criminal court of Cook county in a trial de novo, she was found guilty and a fine of $25 was imposed. Her appeal comes direct to this court on the certificate of the trial judge that the validity of a municipal ordinance is involved and that in his opinion the public interest requires that an appeal be taken directly to the Supreme Court.

The parts of the ordinance material to the questions here involved are as follows: ‘Section 1. Definition of Peddler-Peddlers required to be Licensed. That every person, firm or corporation who shall sell or offer for sale, barter or exchange at retail any goods, wares or merchandise of any kind whatsoever, by traveling from place to place in, along and upon any of the streets of the city of Blue Island * * * whether to regular customers or not, shall be deemed a peddler and shall before engaging in said business, obtain a license as a peddler as hereinafter provided.’ Section 3 provides that a written application for license shall be made to the city clerk, and section 4 requires that pedestrian peddlers pay a fee of $25 per year or $4 per day.

The facts were all stipulated. Defendant was a member of Jehovah's Witnesses and by virtue of her membership was an ordained minister of that sect. At the time of the commission of the acts complained of, she carried an identification card showing such fact. On a date alleged she was on a certain street in the city of Blue Island carrying a canvas bag with the words ‘The Watch Tower and Consolation, 5c per copy’ appearing on one side, and on the other appeared the words ‘The Watch Tower explains the Theocratic Government, 5c per copy.’ A fifteen-year-old boy accompanied her and presumably under her direction carried a sign about eighteen by twenty inches, upon which appeared the same words as those on the canvas bag. The defendant and the boy walked back and forth on the sidewalk and while so engaged the defendant spoke to persons on the street using such words as ‘Religion is a snare and a racket. Religion and Christianity are different. Religion will ruin the Nation. Christianity will save the people. Read ‘The Watch Tower’; read the ‘Consolation’ 5c a copy.' Defendant endeavored to sell as many copies of the magazines, The Watch Tower and Consolation at 5c per copy as possible, and it is stipulated that she did sell one copy of each for which she received ten cents. She also gave the purchaser a copy of Kingdom News, for which she received no money. Persons who could not pay for the magazines were given copies without charge. It was stipulated that the appellant would, if called as a witness, testify that she distributed the literature as part of her form of worship, without financial gain or material profit to herself, and not as a means of livelihood, and that her reason for not obtaining a license as required by the ordinance was because it was against her religious belief to ask man for permission to do God's work.

The magazines sold by the defendant would come within the terms ‘goods, wares and merchandise’ used in the ordinance. Village of South Holland v. Stein, 373 Ill. 472, 26 N.E.2d 868, 127 A.L.R. 957.

Under the facts of this case, our view of the application of the law on the freedom of speech and press makes it unnecessary to consider any other constitutional question.

Section 4 of article 2 of the constition of Illinois, Smith-Hurd Stats., provides: ‘Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.’ The first amendment to the constitution of the United States provides: ‘Congress shall make no law * * * abridging the freedon of speech, or of the press.’ It has been frequently held that the freedom of speech and of the press secured by the first amendment against abridgement by the United States is similarly secured to all persons by the fourteenth amendment against abridgement by a State. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138;Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095;Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357;Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484;Grosjean v. American Press Co. 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660;De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278;Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066;Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949;Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S. Ct. 146, 84 L.Ed. 155.

Recent pronouncements of the Supreme Court of the United States make it obvious that the ordinance here in question, as applied to the sale and distribution of the magazines and leaflets by the defendant is unconstitutional and a violation of the right of freedom of speech and of the press. Lovell v. City of Griffin, supra; Schneider v. State of New Jersey, Town of Irvington, supra; Grosjean v. American Press Co. supra; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352;Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

In Lovell v. City of Griffin, supra, the ordinance of the city of Griffin prohibited the distribution, either by sale or by gift of printed matter within the city without a written license from the city manager. Alma Lovell was a member of the Jehovah's Witnesses sect and was convicted of violating the ordinance by distributing pamphlets and magazines in the nature of religious tracts, such as are involved in this case, without having first obtained the written permission of the city manager. The United States Supreme Court reversed the conviction and held the ordinance void. Chief Justice Hughes, speaking for the court [303 U.S. 444, 58 S.Ct. 669, 82 L.Ed. 949], said: ‘We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing.’ And the liberty of the press became initially a right to publish ‘without a license what formerly could be published only with one.’ While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. * * * Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form. The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'

In Schneider v. State of New Jersey, Town of Irvington, supra, four cases were consolidated involving ordinances in cities of New Jersey, California, Wisconsin and Massachusetts. The Los Angeles, Milwaukee and Worcester ordinances prohibited the distribution of hand bills on streets or sidewalks or in parks, and the Supreme Court held that they were void because the purpose of keeping streets clean and of good appearance was insufficient to justify prohibiting a person lawfully on the street from distributing literature. The ordinance of the town of Irvington, New Jersey, provided that no one should canvass, solicit or distribute circulars or other matter or call from house to house without first reporting to and receiving a written permit from the chief of police. It required information to be given in the application as to the character of the solicitor and the nature of his project, and left it to the officer's discretion whether the permit might be granted, refused or recalled. Clara Schneider, a member of the Jehovah's Witnesses organization who was engaged in calling from house to house and endeavoring to make converts by means of magazines and pamphlets, was arrested and convicted. The Supreme Court [308 U.S. 147, 60 S.Ct. 150, 84 L.Ed. 155] reversed the conviction and held the ordinance to be void and said: ‘Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion. Municipal...