City of Manchester v. Leiby
| Decision Date | 17 February 1941 |
| Docket Number | No. 3630.,3630. |
| Citation | 117 F.2d 661 |
| Parties | CITY OF MANCHESTER et al. v. LEIBY et al. |
| Court | U.S. Court of Appeals — First Circuit |
John E. Tobin, of Manchester, N. H., for appellants.
Hayden C. Covington, of Brooklyn, N. Y. (Joseph F. Rutherford, of Brooklyn, N. Y., on the brief), for appellees.
Before MAGRUDER and MAHONEY, Circuit Judges, and HARTIGAN, District. Judge.
Milton L. Leiby and twelve other individuals joined with the Watchtower Bible and Tract Society, Inc., a New York corporation, in a complaint against the city of Manchester, New Hampshire, the chief of police thereof and the justice of the municipal court, seeking an injunction restraining the defendants from enforcing a certain municipal ordinance alleged to be invalid.
The individual plaintiffs are alleged to be all residents of the State of New Hampshire. They are certified by the Watchtower Bible and Tract Society as being among the company of Jehovah's witnesses and as being authorized by the Society to preach the gospel of God's kingdom and to disseminate the message of the gospel in printed form. The plaintiffs have been engaged in street distribution in Manchester of two magazines put out by the Society, The Watchtower, "Announcing Jehovah's Kingdom," and Consolation, a "Journal of Fact, Hope and Courage." These magazines are sold for five cents a copy. From persons receiving them the plaintiffs usually take a money contribution, but copies are given away to persons unable to pay for them.
Chapter 39 of the ordinances of the city of Manchester is assailed as void under the due process clause of the Fourteenth Amendment in that it unduly infringes upon the free exercise of religion and the freedom of speech and of the press. This ordinance, which has been in force since 1912, reads as follows:
The plaintiffs carried on without ever applying for the badges specified in the ordinance. As to this the complaint avers: "That plaintiffs and others of Jehovah's witnesses cannot and will not stop said lawful work and cannot and will not apply for a badge or a permit as required by said ordinance because for them to do so would be as they sincerely believe, an insult to Almighty God, Jehovah, and a violation of His supreme law and which would result in their everlasting destruction."
Equitable jurisdiction is invoked upon the allegation that the defendants have brought repeated criminal prosecutions against the various individual plaintiffs for violation of the invalid ordinance; that plaintiffs have been repeatedly convicted by the municipal court and have been compelled to perfect appeals to the Superior Court; that by reason of said prosecutions and threats of prosecution for future violations the plaintiffs have been frustrated in their right to distribute the various publications of the Society on the streets of Manchester; that the plaintiffs will suffer irreparable injury and damage unless continued enforcement of the ordinance by the defendants is enjoined.
Jurisdiction in the federal district court is alleged to rest on Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), in that the suit arises under the Constitution and laws of the United States, and the matter in controversy "exceeds as to all said `natural person' plaintiffs jointly the sum of Three Thousand ($3,000.00) Dollars, exclusive of interest and costs." The record is barren of any showing that as to each individual plaintiff the matter in controversy exceeds the sum of $3,000; and it is settled that "the plaintiffs may not aggregate their interests in order to attain the amount necessary to give jurisdiction." Hague v. C.I.O., 307 U.S. 496, 508, 59 S.Ct. 954, 960, 83 L.Ed. 1423, and cases cited. Jurisdiction is also said to rest on Section 24(14) of the judicial Code, 28 U.S.C.A. § 41(14),1 irrespective of the amount in controversy in that the suit is to redress the deprivation, under color of a city ordinance, of civil rights secured by the Constitution of the United States. There has been long-standing doubt as to the meaning in Section 24(14) of the phrase "right, privilege, or immunity, secured by the Constitution of the United States." See Note, 52 Harv.L.Rev. 1136-1142. This doubt was not altogether dispelled by Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, in which none of the opinions rendered received the assent of a majority of the justices. In Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375, 127 A.L.R. 1493, the court's opinion was silent on jurisdiction and disposed of the case on the merits, though the District Court had been much puzzled as to the basis of federal jurisdiction. See Gobitis v. Minersville School Dist., 21 F.Supp. 581, 586, 588; Id., 24 F.Supp. 271, 274, 275. Until advised by the Supreme Court to the contrary, the best we can do, in the circumstances, is to follow the jurisdictional view set forth in the opinion in the Hague case which commanded the assent of the greater number of justices, that of Mr. Justice Stone. Accordingly, we hold that freedom of speech, of the press, and of religion are rights "secured by the Constitution of the United States" within the meaning of Section 24(14); and that under Section 24(14) the District Court had jurisdiction of the present suit, which is of the sort described in the Civil Rights Act, 8 U.S. C.A. § 43.2
No temporary injunction was issued. After hearing on the merits the court decreed that the complaint be dismissed as to the corporate plaintiff. We are not concerned with this, since no appeal has been taken by the Society.
The district judge expressed the view that the ordinance prescribed reasonable police regulations with reference to the use of the streets. Nevertheless, he felt constrained by Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, to declare the ordinance invalid on its face; and he issued a permanent injunction restraining the defendants "from henceforth enforcing, or attempting to enforce, the said ordinance of the said City of Manchester." The breadth of the decree is to be noted. It does not merely enjoin enforcement as against the individual plaintiffs, but under the terms of the decree the defendants can take no action against bootblacks plying their trade on the city streets without having obtained the requisite badge, nor against children under fourteen years of age selling newspapers on the streets without an application for the permit having been made by their parents or guardians.
The challenged ordinance is modest in scope. It puts no restriction upon the giving away of books, papers, magazines, etc., at any time and at any place. Persons desiring to "sell or expose for sale" such literature on the streets or other public places are required to identify themselves before a designated official who keeps a record of the name and age of the applicant. For a nominal deposit a badge is issued to the applicant, who must wear the same conspicuously while selling on the streets, so that citizens and police may readily see that the seller has complied with the ordinance. It is provided that this deposit is to be returned upon surrender of the badge. As we read the ordinance the superintendent of schools has no function to pass on the character of the literature which the applicant proposes to expose for sale; nor has he any discretion to grant or withhold the license. On the contrary, it is his simple duty to issue the badge upon receipt of the application "properly executed". Aside from the regulations applicable to children under fourteen, all that the ordinance does is to enable the city to keep track of persons selling literature on the...
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