City of Portland v. Thornton
| Decision Date | 27 June 1944 |
| Parties | CITY OF PORTLAND <I>v.</I> THORNTON |
| Court | Oregon Supreme Court |
Constitutionality of statute or ordinance relating to sale of
newspapers on the street, note, 107 A.L.R. 1275. See, also, 12
Am. Jur. 185
21 C.J.S., Courts, § 205
Before BAILEY, Chief Justice, BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Rowena Thornton was convicted on appeal from a conviction by municipal court of violating ordinance of the City of Portland, in that she permitted her daughter 10 years of age to expose and offer for sale on the street a periodical, and she appeals.
AFFIRMED.
Lyman E. Latourette, City Attorney, and Joseph O. Stearns, Jr., both of Portland (Lyman E. Latourette, City Attorney, and John B. Seabrook, Deputy City Attorney, both of Portland, on the brief), for respondent.
Carl D. Etling and Harlow C. Barber, both of Portland (Carl D. Etling and Harlow C. Barber, both of Portland, Roy Albert Swayze, of Arlington, Va., and Hayden C. Covington, of Brooklyn, N.Y., on the brief), for appellant.
The defendant, on October 27, 1942, was convicted of violating Ordinance No. 76339 of the city of Portland in that she permitted her daughter 10 years of age to "expose and offer for sale on the street a newspaper, magazine, or periodical." A fine of $25.00 was imposed upon defendant by the municipal court, whereupon she appealed to the circuit court for Multnomah county. The cause was submitted to the circuit court, without a jury, and, after hearing, the defendant was found guilty as charged and sentenced to pay a fine of $25.00. Hence the appeal to this court.
Section 16-903 of the above ordinance provides:
There is no material conflict in the evidence. Defendant and her daughter Brooke are Jehovah's Witnesses and, according to their testimony, are ordained ministers of the gospel. Defendant appeared regularly each week on the streets of Portland to preach the gospel, as she says, by public distribution of the Watchtower and Consolation magazines. These magazines are carried in a bag upon which is printed in large letters: "The Watchtower and Consolation — 5¢ per copy." It is conceded that Brooke often accompanied her mother and engaged in such work. Defendant admits that her daughter was, on the day in question, thus "preaching the gospel," with her consent and approval but that, at all times, she stood a few feet from her and kept constant surveillance over her child. Defendant contends that the magazines were not sold but were distributed to those who made "contributions" for the same. It is said that no person, however, was denied such literature on account of inability to make such "contribution". The finding of the trial court, however, is conclusive that Brooke sold or offered for sale these magazines, which were supplied to Jehovah's Witnesses by Watchtower Bible and Tract Society, Inc., of Brooklyn, New York, at a charge of 2 1/2¢ per copy.
This appeal involves questions of law and not of fact. Appellant contends: (1) That the ordinance, as properly construed, applies only to the commercial exploitation of children of tender years and was never intended to prohibit children from thus worshipping God by distributing such literature upon the public streets; (2) that the ordinance, as construed and applied by the circuit court to the facts in this case, deprives defendant of her right to worship God in accordance with the dictates of her own conscience and therefore, violates both the federal and the state Constitutions.
Since the appeal was perfected in this court, the Supreme Court of the United States, on January 31, 1944, in Sarah Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 88 L.Ed. 645, 64 S.Ct. 438, sustained the validity of sections 80 and 81 of the child labor law of Massachusetts (Ch. 149, Gen. Laws of Mass.) which prohibit any parent from permitting, in violation of section 69 of the act, any boy under twelve or any girl under 18 to "sell, expose or offer for sale any newspapers, magazines, periodicals or other articles of...
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...v. Superior Court, 173 Cal.App.2d 61, 67, 343 P.2d 286; Pickett v. Matthews, 238 Ala. 542, 192 So. 261, 265--266; City of Portland v. Thornton, 174 Or. 508, 149 P.2d 972, 973), and are generally followed (see, e.g., People v. Jackson, 22 Ill.2d 382, 176 N.E.2d 803, 805; Sperry & Hutchinson ......
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... ... or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Miller v. California, supra, 413 U.S. at 32, 93 S.Ct. at 2619. (Footnote omitted.) The ... "average person's" prurient interest would not vary, at least theoretically, from Baker to Portland, Klamath Falls to Eugene. However, the reference to "contemporary" state standards anticipates ... Kennedy, supra n. 2, 295 Or. at 267, 666 P.2d 1316; City of Portland v. Thornton, 174 ... Page 199 ... Or. 508, 512, 149 P.2d 972, cert. den. 323 U.S. 770, 65 S.Ct. 123, 89 ... ...
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Eugene Sand & Gravel, Inc. v. City of Eugene
...745 (1971). Cf. Abington School Dist. v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).6 Cf. City of Portland v. Thornton, 174 Or. 508, 149 P.2d 972 (1944). Cf. Lowe v. City of Eugene, supra note 2, 254 Or. at 546--48, 451 P.2d 117.The plaintiffs in Lowe v. City of Eugene......
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Cooper v. Eugene School Dist. No. 4J
...and the First Amendment's ban on laws prohibiting the free exercise of religion 11 as "identical in meaning," City of Portland v. Thornton, 174 Or. 508, 512, 149 P.2d 972 (1942); but identity of "meaning" or even of text does not imply that the state's laws will not be tested against the st......
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Chapter §2.2 ARTICLE I, SECTIONS 2 AND 3: FREEDOM OF CONSCIENCE AND RELIGIOUS OPINION
...Exercise Clause of the First Amendment of the United States Constitution. The pattern was set in City of Portland v. Thornton, 174 Or 508, 149 P2d 972 (1944). The plaintiff there urged the court to interpret Article I, sections 2 and 3, independently of federal First Amendment law (Appellan......
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Chapter § 2.2
...Exercise Clause of the First Amendment to the United States Constitution. The pattern was set in City of Portland v. Thornton, 174 Or 508, 149 P2d 972, cert den, 323 US 770 (1944). The plaintiff there urged the court to interpret Article I, sections 2 and 3, independently of federal First A......