Jones v. City of Opelika Bowden v. City of Fort Smith, Ark Jobin v. State of Arizona 966

• Citation: 316 U.S. 584,86 L.Ed. 1691,62 S.Ct. 1231,141 A.L.R. 514
• Decision Date: 08 June 1942
• Docket Number: 314,Nos. 280,s. 280
• Parties: JONES v. CITY OF OPELIKA. BOWDEN et al. v. CITY OF FORT SMITH, ARK. JOBIN v. STATE OF ARIZONA. , and 966
• Court: United States Supreme Court

316 U.S. 584

62 S.Ct. 1231

86 L.Ed. 1691

JONES

v CITY OF OPELIKA.

BOWDEN et al.

v. CITY OF FORT SMITH, ARK.

JOBIN

v. STATE OF ARIZONA.

Nos. 280, 314, and 966.

Argued Feb. 5, April 30, 1942.

Decided June 8, 1942.

In No. 280:

Messrs. Hayden C. Covington and Joseph F. Rutherford, both of Brooklyn, N.Y., for petitioner Jones.

Mr. John W. Guider, of Washington, D.C., for respondent.

In No. 314:

Messrs. Osmond K. Fraenkel, of New York City, and Hayden Covington and Joseph F. Rutherford, both of Brooklyn, N.Y., for petitioners Bowden and another.

No. appearance for respondent.

In No. 966:

Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellant Jobin.

No appearance for appellee.

Mr. Justice REED delivered the opinion of the Court.

By writ of certiorari in Nos. 280 and 314 and by appeal in No. 966 we have before us the question of the constitu- tionality of various city ordinances imposing the license taxes upon the sale of printed matter for nonpayment of which the appellant, Jobin, and the petitioners, Jones, Bowden and Sanders, all members of the organization known as Jehovah's Witnesses, were convicted.

No. 280.

The City of Opelika, Alabama, filed a complaint in the Circuit Court of Lee County charging petitioner Jones with violation of its licensing ordinance by selling books without a license, by operating as a Book Agent without a license, and by operating as a transient agent, dealer or distributor of books without a license.¹ The license fee for Book Agents (Bibles excepted) was $10 per annum, that for transient agents, dealers or distributors of books $5. ² Under section 1 of the ordinance all licenses were subject to revocation in the discretion of the City Commission, with or without notice.³ There is a clause providing for severance in case of invalidity of any section, condition or provision.⁴ Petitioner demurred, alleging that the ordinance because of unlimited discretion in revocation and requirement of a license was an unconstitutional encroachment upon freedom of the press. During the trial without a jury these contentions, with the added claim of interference with freedom of religion, were renewed at the end of the city's case, and at the close of all the evidence. The court overruled these motions, and found petitioner guilty on evidence that without a license he had been displaying pamphlets in his upraised hand and walking on a city street selling them two for five cents.⁵ The court excluded as irrelevant testimony designed to show that the petitioner was an ordained minister, and that his activities were in furtherance of his beliefs and the teachings of Jehovah's Witnesses. Once again by an unsuccessful motion for new trial the constitutional issues were raised. The Court of Appeals of Alabama reversed the conviction on appeal because it thought the unlimited discretion of the City Commission to revoke the licenses invalidated the ordinance. Without discussion of this point the Supreme Court of Alabama decided that non-discriminatory licensing of the sale of books or tracts was constitutional, reversed the Court of Appeals, and stayed execution pending certiorari. 241 Ala. 279, 3 So.2d 76. This Court, having granted certiorari, 314 U.S. 593, 62 S.Ct. 93, 86 L.Ed. —-, dismissed the writ for lack of a final judgment. 315 U.S. 782, 65 S.Ct. 630, 86 L.Ed. —-. The Court of Appeals thereupon entered a judgment sustaining the conviction, which was affirmed by the Alabama Supreme Court and is final. 7 So.2d 503. We therefore grant the petition for rehearing of the dismissal of the writ and proceed with the consideration of the case.

No. 314.

Petitioners Bowden and Sanders were arrested by police officers of Fort Smith, Arkansas, brought before the Municipal Court on charges of violation of City Ordinance No. 1172, and convicted. They appealed to the Sebastian Circuit Court, and there moved to dismiss on the ground that the ordinance was an unconstitutional restriction of freedom of religion and of the press, contrary to the Fourteenth Amendment. The circuit judge heard the case de novo without a jury on stipulated facts. The ordinance required a license 'For each person peddling dry goods, notions, wearing apparel, household goods or other articles not herein or otherwise specifically mentioned $25 per month, $10 per week, $2.50 per day.'⁶ The petitioners, in the exercise of their beliefs concerning their duty to preach the gospel, admitted going from house to house without a license, playing phonographic transcriptions of Bible lectures, and distributing books setting forth their views to the residents in return for a contribution of twenty-five cents per book. When persons desiring books were unable to contribute, the books were in some instances given away free. The Circuit judge concluded as a matter of law that the books were 'other goods' and that petitioners were guilty of the peddling without a license. A motion for new trial was denied. On appeal the Supreme Court of Arkansas held the ordinance constitutional on the authority of its previous decision in Cook v. Harrison, 180 Ark. 546, 21 S.W.2d 966, and affirmed the convictions. 202 Ark. 614, 151 S.W.2d 1000. This Court denied certiorari, 314 U.S. 651, 62 S.Ct. 99, 86 L.Ed. -, but later, because of the similarity of the issues presented to those in the Jobin case, No. 966, vacated the denial of certiorari and issued a writ. 315 U.S. 793, 62 S.Ct. 903, 86 L.Ed. —-.

No. 966.

The City of Casa Grande, Arizona, by ordinance made it a misdemeanor for any person to carry on any occupation or business specified without first procuring a license.⁷ Transient merchants, peddlers and street vendors were listed as subject to a quarterly license fee of $25.00, payable in advance.⁸ In the Superior Court of Pinal County Jobin was tried and convicted by a jury on a complaint charging that not having 'a permanent place of business in the City' he there carried on the 'business of peddling, vending, selling, offering for sale and soliciting the sale of goods, wares and merchandise, to wit: pamphlets, books and publications without first having procured a license,' contrary to the ordinance. The evidence for the state showed that without a license the appellant called at two homes and a laundry and offered for sale and sold books and pamphlets of a religious nature. At one home, ccompanied by his wife, he was refused admission, but was allowed by the girl who came to the door to play a portable phonograph on the porch. The girl purchased one of his stock of books, 'Religion,' for a quarter, and received a pamphlet free. During the conversation he stated that he was an ordained minister preaching the gospel and quoted passages from the Bible. At the second home the lady of the house allowed him and his wife to enter and play the phonograph, but she refused to buy either books or pamphlets. When departing the appellant left some literature on the table although informed by the lady that it would not be read and had better be given to someone else. At the laundry the appellant introduced himself as one of the Jehovah's Witnesses and discussed with the proprietor their work and religion generally. The proprietor bought the book 'Religion' for a quarter but declined to buy others at the same price. He was given a pamphlet free. When arrested the appellant stated that he was 'selling religious books and preaching the gospel of the kingdom,' and that because of his religious beliefs he would not take out a license. A motion at the close of the evidence for a directed verdict of acquittal on the ground that the ordinance violated the Fourteenth Amendment was denied. The jury was instructed to acquit unless it found the defendant was selling books or pamphlets. It returned a verdict of guilty. On appeal the Supreme Court of Arizona held that the ordinance, an 'ordinary occupational license tax ordinance,' did not deny freedom of religion and of the press and affirmed the conviction. 118 P.2d 97, 98. An appeal to this Court was allowed under § 237 of the Judicial Code, 28 U.S.C. § 344.

The Opelika ordinance required book agents to pay $10.00 per annum, transient distributors of books (annual only) $5.00. The license fee in Casa Grande was $25 per quarter, that in Fort Smith ranged from $2.50 per day to $25 per month. All the fees were small, yet substantial. But the appellant and the petitioners, so far as the records disclose, advanced no claim and presented no proof in the courts below that these fees were invalid because so high as to make the cost of compliance a deterrent to the further distribution of their literature in those cities. Although petitioners in No. 314 contended that their enterprise was operated at a loss there was no suggestion that they could not obtain from the same sources which now supply the funds to meet whatever deficit there may be sums sufficient to defray license fees also. The amount of the fees was not considered in the opinions below except for a bare statement by the Alabama court that the exaction was 'reasonable', and neither the briefs nor the assignments of error in this Court have directed their attack specifically to that issue. Consequently there is not before us the question of the power to lay fees, objectionable in their effect because of their size, upon the constitutionally protected rights of free speech, press or the exercise of religion. If the size of the fees were to be considered, to reach a conclusion one would desire to know the estimated volume, the margin of profit, the solicitor's commission, the expense of policing and other pertinent facts of income and expense. In the circumstances we venture no opinion concerning the validity of license taxes if it were proved, or at least distinctly claimed, that the burden of the tax was a substantial clog upon activities of the sort here involved.⁹ The sole constitutional question considered is whether a nondiscriminatory license fee, presumably...