Leiby v. City of Manchester
| Decision Date | 29 June 1940 |
| Docket Number | Civil No. 61. |
| Citation | 33 F. Supp. 842 |
| Parties | LEIBY et al. v. CITY OF MANCHESTER et al. |
| Court | U.S. District Court — District of New Hampshire |
Hayden Covington, of Brooklyn, N. Y., for Leiby et al.
Devine & Tobin, of Manchester, N. H., for City of Manchester et al.
This is a bill in equity brought by the plaintiffs to restrain the defendants from alleged illegal and wrongful interference with plaintiff's civil rights secured to them by the Fourteenth Amendment of the Constitution of the United States.
The plaintiff Milton L. Leiby and the twelve individual associates named in the bill of complaint are all residents of the State of New Hampshire and members of a religious cult known as "Jehovah's Witnesses".
The parent association, joined as a party plaintiff, is the Watch Tower Bible and Tract Society, Inc., a corporation organized under the laws of the State of New York. Each individual plaintiff is a duly authorized representative of said corporate plaintiff under whose direction each performed and performs the work of preaching the gospel and distributing their literature, on the streets of Manchester and other parts of the State of New Hampshire.
The defendant City of Manchester is a municipal corporation organized and existing under the laws of the State of New Hampshire, and is located in Hillsborough County in said State with its officers and agents domiciled therein.
Defendant James F. O'Neil is a citizen of the State of New Hampshire and the duly qualified and acting Chief of Police of said City of Manchester.
Defendant Alfred J. Chretien is a citizen of the State of New Hampshire and the duly qualified and acting Associate Justice of the Municipal Court in said City of Manchester.
The business of the plaintiff corporation is printing, publishing and disseminating Bible truths in various languages by means of tracts, pamphlets, books, periodicals and magazines.
One of such magazines is called the "Watchtower" and another is designated "Consolation". The purpose of the "Watchtower" magazine as set forth on the inside cover of the front page is stated in part as follows: "This journal is published for the purpose of enabling the people to know Jehovah God and his purposes as expressed in the Bible." "Consolation" is a magazine the columns of which are devoted to information on world events, "and showing the relationship between such current happenings and the fulfillment of prophecies of Almighty God, Jehovah, recorded centuries ago in His Word, the Bible." The magazine sells for five cents a copy or one dollar a year. From persons receiving such magazines plaintiffs usually take a money contribution, but to persons unable to contribute plaintiffs give the magazines free and without charge.
The individual plaintiffs have engaged in street distribution of said magazines hereinbefore described since the first of March, 1940, and while engaged in such distribution have been arrested on a complaint charging them with a violation of a city ordinance.
In July, 1912, the City of Manchester passed an ordinance, entitled "Newsboys and Bootblacks", worded as follows:
The ordinance also provides that the superintendent of schools shall issue all badges in accordance with the provisions of the ordinance and that he shall keep a record showing the name and age of the applicant and the date of issuing and file all documents necessary to support the said record. A fee of fifty cents is charged to each applicant to be returned upon surrender of the badge.
Section 4 of the ordinance provides a penalty as follows: "Any person who violates any of the aforesaid regulations may have his license revoked by the board of mayor and aldermen upon the complaint of any citizen or public officer and be subject to a fine of not less than one dollar nor more than five dollars for each offense."
Members of Jehovah's Witnesses have selected Saturday evenings, when there are more people congregated on the street, for the sale and distribution of their literature. On numerous occasions members have been arrested and locked up over the week-end, appearing in court Monday morning tried and convicted for violation of the ordinance in question. Fines of five dollars were imposed in each instance and appeals taken to the superior court and bail fixed in the sum of $100. The cases have, therefore, passed beyond the City of Manchester, its police and municipal court.
This bill in equity is prosecuted for the purpose of restraining the City of Manchester and its municipal authorities from enforcing the city ordinance in the manner above described.
On May 24, 1940, the bill came on for hearing on the question of granting a temporary injunction. After hearing oral arguments counsel were granted ten days within which to file briefs in support of their contention. The Court suggested that the complainants refrain from committing any acts in violation of the ordinance until there was a ruling on the question. The complainants readily agreed to the Court's suggestion. After the briefs were received and examined, the case was set down for hearing on its merits without ruling on the question of a temporary injunction. At the hearing on June 18th counsel for the defendants charged the complainants with violating the agreement made with the Court, in that two of Jehovah's witnesses were distributing their literature on the streets of Manchester on the evening of June 15 and were arrested. This was admitted by the witnesses whereupon counsel made a motion to dismiss on the ground that the complainants did not come into court with clean hands.
I find that it is true that at least two of the complainants wilfully and knowingly disregarded the agreement made with the Court, in fact they were very defiant and indicated a disposition to carry out their desires regardless of any orders the Court might make. Had this agreement been in writing and made as a court order the action would have been summarily dismissed when the witnesses brazenly testified to the violation of their agreement.
The ordinance in question was passed July 19, 1912. It appears to have been motivated to assist the authorities in enforcing attendance in the public schools. It is, however, broad enough to exclude the sale or distribution of literature on the streets of Manchester by adults as well as minors and if the ordinance is constitutional the officers of the city are well within their rights in enforcing it.
This brings us to the real question in issue, whether the ordinance as applied to these complainants is constitutional and, if constitutional, deprives complainants of their rights of freedom to worship Almighty God, as practised by them, freedom of speech, of press and of assembly in violation of the United States Constitution, Fourteenth Amendment, Section 1.
Counsel for the defendants, in his argument in support of the constitutionality of the municipal ordinance, called attention to the fact that it did not restrict any right of worship and did not prohibit the sale and distribution of complainants' literature on the streets of Manchester, but was merely a matter of regulation and identification of those so engaged. It required that any person desiring to distribute or sell literature on the public streets must first get an identification button from the superintendent of schools who is bound to issue the same to anyone seeking to obtain it upon payment of fifty cents to be returned upon surrender of the badge. These statements of counsel were not controverted by complainants' witnesses and it does not appear that any of them ever contacted the superintendent of schools or applied for a badge.
A few excerpts from the testimony of the witnesses characterizes the attitude of the members of the sect with reference to complying with the ordinance in question.
Milton L. Leiby testified that he was an ordained minister of the gospel, one of Jehovah's witnesses and worked in connection with the Watch Tower Bible and Tract Society; that he was a representative for New Hampshire and connected with the Manchester company. He said he had been arrested seven times. He testified that it was the desire of each of Jehovah's witnesses in Manchester to engage in street distribution of their literature as a means of preaching the gospel; that their method of distribution was to stand on the street corner at a busy intersection and offer the magazine to the passing public for a small contribution of five cents to those who are willing to accept the same. Those who are not able to contribute, the magazine is given to them on the promise that they will read it. He said: "We believe in obeying all the laws of the land that are constitutional and do not conflict with the law of God." He testified that he refused to obey the...
To continue reading
Request your trial