National Foundation v. City of Fort Worth, Texas

• Decision Date: 30 November 1967
• Docket Number: No. CA 4-800.,CA 4-800.
• Citation: 307 F. Supp. 177
• Parties: The NATIONAL FOUNDATION, a Corporation v. CITY OF FORT WORTH, TEXAS, a Municipal Corporation.
• Court: U.S. District Court — Northern District of Texas

307 F. Supp. 177

The NATIONAL FOUNDATION, a Corporation v. CITY OF FORT WORTH, TEXAS, a Municipal Corporation.

No. CA 4-800.

United States District Court N. D. Texas, Fort Worth Division.

November 30, 1967.

COPYRIGHT MATERIAL OMITTED

Stephen V. Ryan, Jr., New York City, Brown, Herman, Scott, Young & Dean, by Wm. M. Brown, Fort Worth, Tex., for plaintiff.

S. G. Johndroe, Jr., Jerome H. Parker, Jr., Fort Worth, Tex., for defendant.

OPINION

BREWSTER, District Judge.

The plaintiff brings this action seeking judgment declaring unconstitutional Chapter 32 of the Code of the City of Fort Worth, Texas, which regulates the solicitations of charitable contributions on the streets and in public places in such city.

The defendant's challenge of jurisdiction raises a serious question. The complaint says only that the Court has jurisdiction under Title 49 U.S.C.A. § 1983 (the plaintiff obviously meant Title 42), and also under Title 28 U.S. C.A., § 1343(3), "and with respect to declaratory judgment sought herein has jurisdiction under Title 28 U.S.C.A. § 2201." Even if plaintiff otherwise comes within the civil rights statutes, its complaint fails to show that it is being denied any right, privilege or immunity secured by the Constitution of the United States or by any act of Congress providing for equal rights of all persons within the jurisdiction of the United States. There is no constitutional right to make public solicitation of funds for charity, and such public solicitations are subject to the police power of the state where made. Cantwell v. State of Connecticut, 310 U.S. 296, 305, 306-307, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352 (1940); American Cancer Society v. City of Dayton, 160 Ohio St. 114, 114 N.E.2d 219, 224 (1953); Gospel Army v. City of Los Angeles, 27 Cal.2d 232, 163 P.2d 704, 712-713 (1945); Ex Parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 488 (1940), cert. den. 311 U.S. 675, 61 S.Ct. 42, 85 L. Ed. 434; Ex Parte White, 56 Okl.Cr. 418, 41 P.2d 488, 490 (1935). The declaratory judgment statute is not a jurisdictional act. It provides only a remedy in cases in which the court has jurisdiction from other sources. Jurisdiction of this case can hang only on the slender thread created by the allegation that the exception in Chapter 32 exempting churches and fraternal organizations soliciting "funds for its own use solely from its own members" is a discriminatory classification resulting in a denial to the plaintiff of equal protection of the laws guaranteed by the fourteenth amendment of the federal constitution. While the Court is of the opinion that, for reasons hereinafter discussed, Chapter 32,¹ attached as an exhibit to the plaintiff's complaint, shows on its face that there was no such unconstitutional discrimination, it will, in view of the importance of getting the question decided, assume jurisdiction on the basis of this particular allegation and get to the merits of the case.

At a hearing set for consideration of motions for summary judgment filed respectively by each of the parties, and for pre-trial if both of such motions should be overruled, all counsel agreed that the only question in the case was the constitutionality of Chapter 32 of the City Code, and that the decision of such matter under the pleadings here involved only issues of law and not of fact. It was conceded that one side or the other was entitled to a summary judgment, and the case was submitted to the Court on that basis. After thorough consideration of all matters on file relevant to such motions and of the able briefs filed by each of the parties, the Court has concluded that summary judgment should be entered in favor of the defendant.

Plaintiff, The National Foundation, is chartered by New York as a non-profit, charitable corporation, and has a permit to do business in Texas. The defendant is a home rule city, with all the powers given it as such by the constitution and statutes, of Texas. Art. 11, Sec. 5, Constitution of Texas, Vernon's Ann.St.; Title 28, Ch. 13 (Arts. 1165-1182f) Vernon's Ann.Tex.Civil Statutes.

Plaintiff was formerly the National Foundation for Infantile Paralysis, Inc. At about the time it became apparent that its well-known heroic fight against infantile paralysis was successful, it amended its charter so as to change its name and broaden the scope of its activities to include not only infantile paralysis, but also any phase of any disease affecting human beings. Its fund raising activities included the annual "March of Dimes" campaign on the downtown public streets of cities over the nation. Paragraphs 5 and 6 of the complaint give the following succinct description of the nature of that campaign:

"5.

"The charitable work performed by Plaintiff is in part based upon the efforts of local unincorporated units of Plaintiff called `Chapters' which are assigned geographical territories and are responsible for the activities of Plaintiff within that territory. Each chapter receives a certificate or recognition from the Plaintiff; each chapter is an integral part of Plaintiff; and each chapter is subject at all times to the rules, regulations, and policies of Plaintiff. The Tarrant County Chapter of the Plaintiff, the territory of which includes the City of Fort Worth, was organized on May 6, 1940.

"6.

"For many years past the Plaintiff and its local chapters, including the Tarrant County Chapter, have conducted an annual fund-raising appeal on both a national and local scale (entitled and hereinafter called the `March of Dimes') to raise funds through charitable contributions to support the activities of Plaintiff and its local chapters. The `March of Dimes' is directed by Plaintiff in accordance with nationally developed plans, and, except for special campaigns of Plaintiff, no chapter may engage in any fund-raising activities other than the `March of Dimes.' In each year the `March of Dimes' is conducted during the month of January, and is keyed to a national publicity campaign through the voluntary cooperation and assistance of radio and television networks and stations that broadcast announcements and requests urging all listeners to contribute to the `March of Dimes' and through the voluntary cooperation and assistance of other media of public communication on the national and local level. Locally, the chapters organize volunteer workers in the various communities in their respective territories to publicize the `March of Dimes' and solicit contributions. The work undertaken by such voluntary workers in their respective communities includes the distribution of advertising posters appealing for contributions, mail solicitation, collections made through deposit in coin containers installed by such volunteer workers in various public places and commercial establishments, solicitation on public streets and from house to house, and various other methods." (Emphasis added)

It will later appear more fully that the only ground upon which the City denied the plaintiff a permit to make its annual solicitations was that the cost of its solicitations exceeded the twenty per cent limit provided by Chapter 32, without a proper showing, as required by such Chapter, that such excess was reasonable and necessary. Under plaintiff's own audit available at the City's hearing on its application for a permit, its fund raising costs in Fort Worth had exceeded one-third of the amount raised in the City for each of the two years past. When the City applied the same standards to it as were applied to other charitable organizations applying for permits, the fund raising cost exceeded fifty per cent. This was in spite of the fact that, according to the allegations of plaintiff's own complaint, most of the fund raising work was done by voluntary workers and that the publicity by the news media was also on a voluntary basis.

Chapter 32 was enacted in 1937, and has been consistently enforced by the City of Fort Worth since that time. The American Heart Association, the American Cancer Society, the National Arthritis Foundation, the National Council on Alcoholism, and all other charitable organizations have willingly complied with it. There is no indication that any of them ever objected to the twenty per cent provision or to furnishing the information of their financial operations necessary to enable the City to determine that the solicitations were in fact primarily for charity rather than for large administrative salaries. The plaintiff also willingly complied with it until its administrative expenses took a substantial jump. In spite of that fact, the City gave plaintiff two years of grace before it finally made it clear that even plaintiff was not above the City Code. Even then, it appeared that the plaintiff was going to take advantage of the plenary public hearing before the City Council to show that the excess over the twenty per cent was reasonable. It was only when inquiry was made as to the salaries of its top officials that plaintiff clammed up and took a position which, if adopted, would mean that any person or organization would have the unbridled privilege of soliciting funds in the name of charity, without any risk of being called upon to show even in the most general way how much of the money raised actually went for the public and how much went for administrative expense. It does not take much imagination to envision what would happen if the gates were thrown wide open for solicitations on the streets and in public places by all comers in the name of charity. The injury to the public would be tremendous, but the bona fide charitable organizations would be hurt, too. The public would be over solicited, and a person wishing to make a donation would have no way of knowing the bona fide charities from the predators.

Nothing said herein is intended to reflect upon the plaintiff organization. No one realizes better than a parent who has suffered the agony of seeing his own child stricken by...